Judge: Craig Griffin, Case: "Stewart v. Zhou, et. al", Date: 2023-08-28 Tentative Ruling
The motion by defendant Realty Masters & Associates, Inc. (“Realty”) against plaintiffs Kurt Douglas Stewart and Lara Elizabeth Stewart for dismissal of the complaint, an order that RFAs be deemed admitted and/or monetary sanctions is GRANTED in part and DENIED in part.
Realty’s motion is based on the failure of the plaintiffs to provide verified answers to written discovery, and to produce documents, as ordered by the Court on March 6, 13 and 27, 2023. (Bradley Decl. at ¶8)
In plaintiffs’ opposition, counsel stated via declaration on 8/15/23 that he had “prepared responses to all of the outstanding discovery and anticipate verified responses without objection will be served by the end of the week. I will be finished preparing the documents for production by tomorrow when they will be served on the parties. I anticipate producing several hundred pages of documents. A supplemental declaration with the responses attached as exhibits will be filed at that time.” (Sienski Decl. at ¶6)
However, contrary to counsel’s representations, as of the filing of the reply on 8/21/23 the only discovery responses provided were to the RFAs and no documents were provided. (Bailey Decl. at ¶2) Also, plaintiffs did not file a supplemental declaration as represented.
Imposition of sanctions for misuse of discovery lies within the trial court’s discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (See Code Civ. Proc. §§ 2030.290(c) (interrogatories), 2031.300(c) (requests for production); see also The Rutter Group, Civil Procedure before Trial ¶ 8:852.) The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (CCP§ 2023.010 (d)&(g).)
However, before issuing terminating sanctions, the court should usually grant lesser sanctions such as orders staying the action until the derelict party complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party. (Doppes v. Bentley Motors, Inc (2009) 174 Cal.App.4th 967, 991; Civil Procedure before Trial ¶ 8:1215.) It is only when a party persists in disobeying the court’s orders that the ultimate sanctions of dismissing the action or entering default judgment, etc. are justified. (See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771.)
Based on responses to RFAs having been served, along with plaintiffs’ counsel’s representation that verified answers, without objection, are forthcoming, terminating sanctions and deeming RFAs admitted is a step too far at this point. The Court will allow plaintiffs until September 5, 2023 to complete service by email of the verified answers, without objection, and production of documents, to the Form Interrogatories, Set One, Special Interrogatories, Set One and Request for Production of Documents, Set One, and to produce documents. Upon completion of service of the foregoing, plaintiffs are ORDERED to file a declaration with the Court showing compliance with the Court’s orders regarding the responses only. (Proof of payment of sanctions is not required as Realty has other options for collection of sanctions.) In the event a declaration regarding service is not filed on or before September 5, 2023, the Court will issue evidentiary sanctions and ORDER that the plaintiffs are precluded from submitting any evidence or argument at trial regarding the matters which are the subject of the 29 interrogatories in Special Interrogatories, Set One.
In addition to the foregoing, irrespective of whether the plaintiffs submit proof of compliance with the discovery orders, the plaintiffs and their counsel, Paul Sienski, jointly and severally, are ORDERED to pay monetary sanctions in the amount of $2,760 to Realty Masters & Associates, Inc., through their attorney of record, within 30 days.
The Court orders counsel for Realty Masters & Associates, Inc. to give notice of this ruling.