Judge: Curtis A. Kin, Case: 21STCV35447, Date: 2022-12-20 Tentative Ruling

Case Number: 21STCV35447    Hearing Date: December 20, 2022    Dept: 72

MOTION FOR TERMINATING SANCTIONS

Date:               12/20/22 (8:30 AM)

Case:               Direct Painting & Decorating, Inc. v. Johanne Bouchereau (21STCV35447)

TENTATIVE RULING:

Plaintiff Direct Painting & Decorating, Inc.’s UNOPPOSED Motion for Terminating Sanctions is GRANTED.

Plaintiff Direct Painting & Decorating, Inc. moves for the imposition of terminating sanctions against defendant Johanne Bouchereau for violating the Court’s discovery orders issued on May 19, 2022 and September 13, 2022. Plaintiff seeks the striking of defendant’s Answer and entry of default against defendant.

On May 19, 2022, the Court heard plaintiffs’ unopposed Motion to Compel Defendant Johanne Bouchereau to Provide Further Responses to Form Interrogatories-General, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One. (Suh Decl. ¶ 12.) The Court ordered defendant to serve further verified code-compliant responses, without objection, to Form Interrogatories-General, Set One, No. 15.1; Special Interrogatories, Set One, Nos. 7, 8, 35, 37, 38, and 58; and Request for Production of Documents, Set One, Nos. 2, 5, 6, 8-31, 34, 35, 43, 48, and 51-53 and produce all documents that are responsive to the requests for production. (5/19/22 Minute Order; Suh Decl. ¶ 12 & Ex. A.)

On September 13, 2022, the Court heard plaintiff’s Motion to Compel Responses to Form Interrogatories, Set Two and Special Interrogatories, Set Two and Motion to Compel Responses to Requests for Production of Documents, Set Two. (Suh Decl. ¶ 23.) Defendant did not file any opposition to this motion and did not appear at the hearing. (Suh Decl. ¶ 23.) The Court ordered defendant to serve written verified responses, without objection, to the second sets of discovery propounded by plaintiff and produce documents that are responsive to Requests for Production of Documents, Set Two. (9/13/22 Minute Order; Suh Decl. ¶ 23 & Ex. E.) Plaintiff served notice of the September 13, 2022 ruling on defendant. (Notice of Ruling filed 9/13/22.)

Defendant has not served responses to any of the discovery ordered by the Court on May 19, 2022, or September 13, 2022. (Suh Decl. ¶¶ 13, 24, 33, 34.) On September 21, 2022, before filing this motion, plaintiff sent an email to defendant detailing the discovery for which defendant was obligated to provide responses pursuant to the May 19, 2022, and September 13, 2022 discovery orders. (Suh Decl. ¶ 31 & Ex. K.) Plaintiff provided defendant up to September 28, 2022 to comply with both discovery orders. Otherwise, plaintiff indicated that it would file a motion with the Court seeking “further, more substantial sanctions, including…terminating sanctions….” (Suh Decl. ¶ 31 & Ex. K.) Despite responding to plaintiff’s previous emails concerning the scheduling of her deposition and subsequent nonappearance, defendant did not respond to plaintiff’s September 21, 2022 email. (Suh Decl. ¶¶ 25, 27, 28, 29, 32 & Exs. F, I, J.)

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, defendant’s failure to respond to the discovery as ordered by the Court was willful.

With respect to the first sets of discovery that are the subject of the May 19, 2022 order, on June 23, 2022, upon granting and service of a motion to be relieved as counsel, counsel withdrew from representing defendant. (6/23/22 Order Granting Attorney’s Motion to Be Relieved as Counsel; 6/23/22 Proof of Service.) However, before counsel withdrew, counsel represented defendant at the hearing. (5/19/22 Minute Order.) Counsel waived notice of the ruling. (5/19/22 Minute Order.) Accordingly, defendant is charged with notice of the ruling. Moreover, on September 21, 2022, plaintiff provided defendant with an additional opportunity to serve responses to the first sets of discovery, but defendant did not respond to plaintiff’s email. (Suh Decl. ¶¶ 31, 32 & Ex. K.)

With respect to the second sets of discovery, defendant failed to respond to plaintiff’s second sets of discovery initially, failed to oppose plaintiff’s motion to compel responses to such discovery requests, failed to attend the hearing on that motion, and further failed to produce responses to the subject discovery requests after having been served notice of the Court’s order to respond and provided notice on September 21, 2022 of plaintiff’s intention to seek terminating sanctions.

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, 84 Cal.App.3d at 788.) By failing to file an opposition to this motion, defendant 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 plaintiff from defendant’s non-compliance with the May 19, 2022 order, Form Interrogatories-General, Set One, No. 15.1 asks for facts, witnesses, and documents supporting the affirmative defenses in defendant’s Answer. (4/14/22 Suh Decl. ¶ 2 & Ex. A at No. 15.1.) Special Interrogatories, Set One, Nos. 7, 8, 35, 37, 38, and 58 ask for, among other things, the identification of business expenses that defendant purportedly incurred in connection with her employment with plaintiff and supporting documentation. (4/14/22 Suh Decl. ¶ 2 & Ex. A at Nos. 35, 37.)

With respect to the detriment to plaintiff from defendant’s non-compliance with the September 13, 2022 order, Special Interrogatories, Set Two ask defendant, among other things, the reasons why defendant issued company checks to herself, including whether she issued checks to pay down credit card balances; whether she is the account holder or user of specified credit accounts; and for the identification of business expenses for which defendant contends she is entitled to reimbursement. (8/16/22 Suh Decl. re: Interrogatories ¶ 2 & Ex. A at Nos. 68-72, 75, 78, 81.) Requests for Production, Set Two asks defendant to produce monthly statements for specified credit accounts. (8/16/22 Suh Decl. re: Requests for Production ¶ 2 & Ex. A at Nos. 54-58.)

The subject discovery pertains to plaintiff’s allegations that (1) defendant issued checks from plaintiff to credit card companies to pay off personal debts and (2) defendant issued false reports to plaintiff’s third-party payroll provider to obtain reimbursements for purported business expenses. (Compl. ¶¶ 12, 15.) Defendant also contends that plaintiff ordered her to write checks that were payable to certain individuals and to generate invoices falsely reflecting that certain payments were made as business expenses or to companies other than the true payees. (Answer ¶¶ 1, 2.) Based on the parties’ respective allegations, defendant’s refusal to respond to discovery is detrimental to plaintiff’s ability to prosecute its claims and to address defendant’s defenses.

Based on the willfulness exhibited by defendant in failing to comply with the May 19, 2022 and September 13, 2022 discovery orders and the detriment to plaintiff resulting therefrom, the Court finds that terminating sanctions are appropriate. Indeed, by failing to respond to the instant motion, defendant has not provided any reasons as to why a lesser sanction (such as monetary, issue, or evidentiary sanctions) would be more appropriate. Such lessert 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, defendant exhibits no good faith interest or desire to defend against the case brought by plaintiff. She did not respond to or attend the hearing on her prior counsel’s motion to be relieved. (See 6/23/22 Order Granting Attorney’s Motion to Be Relieved as Counsel.) Despite receiving notice that his counsel had been relieved (Proof of Service filed 6/23/22), defendant neither responded to nor attended the hearing for plaintiff’s motion to compel responses to the second sets of discovery. (See 9/13/22 Minute Order.) Indeed, according to plaintiff’s counsel, defendant was purportedly noncommunicative about scheduling her deposition and ultimately failed to appear for her agreed-upon deposition date.  (See Suh Decl. ¶¶ 25-30.)

And, as discussed above, defendant has not complied with the Court’s May 19, 2022 or September 13, 2022 Orders to respond to discovery or made any effort to respond to the instant motion unambiguously seeking terminating sanctions. (See 10/11/22 Notice of Motion at i-ii [“PLEASE TAKE NOTICE that on December 20, 2022 at 8:30 a.m….in Department 72 of the above-entitled Court...Plaintiff DIRECT PAINTING & DECORATING, INC….will and hereby does move this Court for an Order issuing terminating sanctions against Defendant, Johanne Bouchereau…striking Defendant’s Answer to the operative Complaint, and entering default against Defendant based upon her failure to comply with the Court’s numerous orders to provide discovery responses (and produce corresponding responsive documents)….”].)

Based on defendant’s misuse of the discovery process, the motion is GRANTED. The Answer filed by defendant Johanne Bouchereau on December 15, 2021 is STRICKEN. Default is entered against defendant Johanne Bouchereau.  Accordingly, the Court vacates the final status conference and trials scheduled for May 5, 2023, and May 15, 2023, respectively.

Having imposed the “ultimate sanction” of terminating defendant’s ability to defend in this action, the Court declines to award additional monetary sanctions as requested by plaintiff.