Judge: Curtis A. Kin, Case: 20STCV11045, Date: 2022-10-06 Tentative Ruling

Case Number: 20STCV11045    Hearing Date: October 6, 2022    Dept: 72

MOTION FOR SANCTIONS

Date:           10/6/22 (8:30 AM)                 

Case:          Tasha Jenkins v. Monfric et al. (20STCV11045)

TENTATIVE RULING:

Defendant Monfric, Inc.’s UNOPPOSED Motion for Sanctions is GRANTED.

Defendant Monfric, Inc. seeks the imposition of terminating sanctions, or alternatively issue and evidentiary sanctions, as well as monetary sanctions against plaintiff Tasha Jenkins related to the violation of a court order compelling responses to discovery.

On May 12, 2022, the Court granted defendant’s motion to compel responses to the first sets of Form Interrogatories-Employment, Special Interrogatories, and Requests for Production of Documents. (Schnayerson Decl. ¶ 11 & Ex. F.) Plaintiff did not file any written opposition beforehand. (Schnayerson Decl. ¶ 11 & Ex. F.) The Court ordered plaintiff to serve written verified responses, without objection, to Form Interrogatories-Employment, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One within 15 days. (Schnayerson Decl. ¶ 11 & Ex. F.) Plaintiff attended the hearing on May 12, 2022. (Schnayerson Decl. ¶ 11 & Ex. F.) On May 20, 2022, defendant served plaintiff notice of this ruling. (Schnayerson Decl. ¶ 11 & Proof of Service to Ex. F.) Despite attending the hearing and service of the notice of ruling, plaintiff has not served responses to defendant’s discovery ordered by the Court on May 12, 2022. (Schnayerson Decl. ¶¶ 14, 15.)

The Court notes that plaintiff served documents in an attempt to comply with the Requests for Production of Documents, Set One. (Schnayerson Decl. ¶ 14.) However, plaintiff did not serve any verified responses to the document requests, as required by CCP §§ 2031.210(a)(1), 2031.210(a)(2), and 2031.250(a). (See also Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [“Unsworn responses are tantamount to no responses at all”].)

Generally, the trial court may terminate a party’s action as a 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.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Willfulness does not require a showing of wrongful intention; rather, “[l]ack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.) In the context of responding to discovery, the party on whom the discovery request was served has the burden of showing the failure to respond was not willful. (Id. at 788.)

Here, the Court finds that, under the circumstances, plaintiff’s failure to respond to the discovery as ordered by the Court was willful. Simply put, plaintiff failed to respond to defendant’s requests for discovery initially, failed to oppose defendant’s motion to compel responses to such discovery requests, and further failed to produce responses to the subject discovery requests after having attended the hearing and having been served notice of the Court’s order to respond.

Further, plaintiff has not filed any opposition to this motion. “In the context of sanctions against a party for willful refusal to furnish discovery, it has been held that the responding party has the burden of proving the lack of willfulness of his failure to perform.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 201, citing Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788.) By failing to file an opposition to this motion, despite proper service to plaintiff, plaintiff fails to meet her burden to demonstrate her lack of willfulness and accordingly why terminating sanctions should not be imposed.

With respect to the detriment to defendants from plaintiff’s non-compliance with the May 12, 2022 order, the Special Interrogatories seek the identification of witnesses, identification of documents pertaining to the allegations of the Complaint, itemization of plaintiff’s claimed damages, attempts to secure employment, and income obtained from post-termination employment. (Schnayerson Decl. ¶ 3 & Ex. B at Special Interrogatories, Set One.) The Form Interrogatories-Employment ask plaintiff to identify the complaints she made against defendant concerning unlawful conduct alleged in the Complaint, what statutes or regulations plaintiff contends were violated, contentions regarding loss of income, and facts supporting claims of emotional distress. (Schnayerson Decl. ¶ 3 & Ex. B.) The Requests for Production ask plaintiff to produce documents relating to plaintiff’s allegations in the Complaint, claim of damages, search for employment, post-termination income, as well as defendant’s defenses asserted in its Answer to the Complaint. (Schnayerson Decl. ¶ 3 & Ex. B at Requests for Production, Set One.)

Because the subject discovery pertains to plaintiff’s allegations against defendant, plaintiff’s refusal to respond to discovery is detrimental to defendant’s ability to defend against plaintiff’s claims.

A court is not required to impose sanctions in a graduated fashion but may apply “the ultimate sanction” against a party who has persisted in refusing to comply with discovery obligations. (Deyo, 84 Cal.App.3d at 793.) “The unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction . . . .” (Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520, 524.)

Based on the willfulness exhibited by plaintiff in failing to comply with the May 12, 2022 discovery order and the detriment to defendant resulting therefrom, the Court finds that terminating sanctions are appropriate. Indeed, by failing to respond to the instant motion, plaintiff has not sought nor provided any reasons as to why a lesser sanction (such as monetary or evidentiary sanctions) would be more appropriate. Such sanctions may be more appropriately directed to a party that demonstrates a willingness to participate in the litigation but has exhibited conduct that is unbecoming of such participation, which requires correction through sanction.

Here, by contrast, plaintiff exhibits insufficient interest or desire to prosecute the case she brought. The Court notes that while plaintiff is self-represented and has represented to this Court that she is seeking an attorney, plaintiff’s former counsel was relieved on September 17, 2020. (See 9/17/20 Minute Order.) Plaintiff was served with notice of the order allowing for the withdrawal of counsel on September 21, 2020. (See Proof of Service filed 9/21/20.) Accordingly, more than two years have passed since plaintiff has been self-represented. Litigants in propria persona are held to the same standards as attorneys. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Plaintiff cannot rely on her self-representation as an excuse to continue to be in violation of a court order to the detriment of defendant.

Moreover, defendant attempted to obtain the subject discovery responses before the motion leading to the May 12, 2022 order was filed. (Schnayerson Decl. ¶¶ 6, 7, 9 & Exs. C, D.) Despite these attempts, plaintiff did not respond to defendant’s discovery. (See 5/12/22 Minute Order.) As discussed above, plaintiff has not complied with the Court’s May 12, 2022 Order to respond to discovery or made any effort to respond to the instant motion unambiguously seeking terminating sanctions. (See 6/23/22 Notice of Motion at 1-2 [“PLEASE TAKE NOTICE that on October 6, 2022 at 8:30 a.m. . . . Defendant Monfric, Inc. . . . will move the Court for an order . . . [i]ssuing terminating sanctions . . . .”].)

Based on plaintiff’s misuse of the discovery process, the motion is GRANTED. This action is DISMISSED WITH PREJUDICE as to all claims and causes of action asserted by plaintiff Tasha Jenkins against defendant Monfric, Inc.

Having imposed the “ultimate sanction” of terminating plaintiff Tasha Jenkins, the Court declines to award additional monetary sanctions as requested by defendant Monfric, Inc.