Judge: Craig Griffin, Case: "AbdelH.Chehade,asTrusteeoftheAbdelChehadeLivingTrust,datedApril11,2012vs.Freese", Date: 2022-09-29 Tentative Ruling
Cross-Def. Marc Spizzirri’s (“Spizzirri”) unopposed Motion for Terminating Sanctions is GRANTED.
Spizzirri moves the court pursuant to Civ. Proc. Code §§ 2023.010 and 2023.030(d) for terminating sanctions against defendant/cross-complainant Carl Caserta’s (“Caserta”) failure to comply with this court’s 07/11/22 order. Specifically, Caserta failed to serve any responses as ordered to sets one of Form Interrogatories, Special Interrogatories, and Requests for Production propounded by Spizzirri, and failed to pay monetary sanctions as ordered by the court. Alternatively, Spizzirri requested evidentiary/issue sanctions against Caserta.
“The trial court may order a terminating sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 [entry of default as terminating sanction justified based on party's willful failure to comply with order compelling production of documents identified at deposition].) “Generally, “[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Id.)
“Terminating sanctions for discovery abuses are to be used sparingly because of the drastic effect of their application. Cal. Civ. Proc. Code §§ 2023.010, 2023.030.” (Dep't of Forestry & Fire Prot. v. Howell (2017) 18 Cal. App. 5th 154, 191.) “Thus, under the statutory scheme, trial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. [Citation.] Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows [] lesser sanctions would be ineffective.” (Id., at 191–92.)
“The time has come to reassert a well-established but apparently not well-known rule about monetary sanctions in discovery. The rule is that it is an abuse of discretion for a trial court to issue a terminating sanction for failure to pay the sanction. A monetary sanction is immediately enforceable as a judgment, unless the court rules that it is not. In an appropriate case failure to pay an ordered sanction is punishable as a contempt. And failure to provide the underlying discovery, in violation of a court order that it be provided, is punishable by sanctions affecting the conduct of the litigation, up to and including a terminating sanction. Because of that, an order terminating a plaintiff's lawsuit or striking a defendant's answer and entering its default (in effect, terminating sanctions) solely because of failure to pay the monetary sanction is excessive.” (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 610 and 614.) It is, “an abuse of discretion to dismiss the action solely on the ground that the plaintiff had failed to pay monetary sanctions ordered by the court.” (Id., at 614.) Monetary sanction orders, “have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction. [Citations.] Unawareness of this remedy may explain why terminating sanctions are often sought when monetary sanctions are unpaid.” (Id., at 615.)
Given the totality of the circumstances including that monetary sanctions have not worked to compel Caserta to serve responses, that Caserta’s counsel claimed that he never received the Discovery despite Spizzirri showing the Discovery had been served on three separate occasions, and that Caserta’s counsel asked for numerous extensions and promised responses but never served them despite having approximately six-months to respond, the court finds terminating sanctions are proper. The lesser sanctions would not effective.
The Motion is GRANTED as to terminating sanctions on Caserta’s Cross-Complaint against Spizzirri alone.
Spizzirri also requests $2,200 in monetary sanctions against Caserta and his counsel of record. This comes from a very reasonable $200 per hour billing rate, and approximately 10 hours for participating in the July 11 hearing, preparing and filing the notice of ruling, preparing the present motion and declaration, and anticipatory hours (two total) for reviewing and replying to an opposition and attending the hearing. Spizzirri also anticipated incurring $200 in costs associated with this Motion. As no opposition or reply brief were filed, two hours taken off the requested amount. The time spent on attending the hearing on the underlying motions to compel and preparing the notice of ruling are not permitted, which would reduce another 2 hours at least. At most 6 hours should be permitted on this Motion, which is still on the high side, but not unreasonable. Finally, costs aside from the $60 filing fee are not permitted as no basis was provided. The total monetary sanctions on this Motion are:
$200/hr. x 6 hrs. + $60 fee = $1,260.
The monetary sanctions are against both Caserta and his counsel of records and are payable within 15-days of written notice of the court’s ruling.
Spizzirri to give notice.