Judge Cynthia A Freeland, Case Number: 37-2021-00008613-CU-NP-NC, Date: 2024-04-19 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00008613-CU-NP-NC, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 18, 2024

04/19/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2021-00008613-CU-NP-NC DOE VS. LENHOF [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Terminating Sanctions, 03/20/2024

Plaintiff Jane Doe ('Plaintiff')'s motion for terminating sanctions against Defendant Jeffrey Lenhof ('Defendant') is granted.

The court maintains broad discretion in determining an appropriate sanction for misuse of the discovery process. See Lopez v. Watchtower Bible & Tract Society of New York (2016) 246 Cal. App. 4th 566, 604.

In so doing, the court 'should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery.' Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516 (internal quotation omitted). The discovery statutes prescribe an incremental approach to sanctions. Sanctions 'should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.' Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.

Terminating sanctions are generally regarded as a last resort to be applied sparingly. See Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal. App. 5th 1098, 1118. Before issuing terminating sanctions, the court should consider the totality of the circumstances, including: (1) whether the respondent's conduct was willful; (2) the detriment to the propounding party; (3) the number of formal and informal attempts to obtain the discovery; (4) whether the respondent has a history of discovery abuses; and (5) whether the respondent's noncompliance persisted despite previous court orders or warnings that greater sanctions might follow. Ibid. at 1117-1118; Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246. See also Milekowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279-280 ('[W]here 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.').

The court construes Defendant's lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on August 16, 2023, Plaintiff served Defendant with Plaintiff's Form Interrogatories – General (Set One), Requests for Production of Documents (Set One), and Requests for Admission (Set One) electronically and via U.S. mail. See Clemens Decl., ¶ 3, Exs. 1-2. Defendant's responses initially were due by September 20, 2023. See Cal. Code Civ. P. §§ 1013(a), 1010.6(a)(3)(B), 2030.260(a), 2031.260(a), 2033.50(a). On September 26, 2023, Plaintiff's counsel sent Defendant a meet and confer letter regarding the outstanding discovery and requested that responses be provided by no later than October 6, 2023. See Calendar No.: Event ID: TENTATIVE RULINGS

3098100 CASE NUMBER: CASE TITLE: DOE VS. LENHOF [IMAGED] 37-2021-00008613-CU-NP-NC Clemens Decl., ¶ 3. Defendant never: (1) served responses or documents responsive to the discovery requests, or (2) responded to Plaintiff's counsel's meet and confer efforts. Ibid. Consequently, on October 9, 2023, Plaintiff filed: (1) a motion to compel Plaintiff's responses to the Form Interrogatories, and for sanctions (see ROA No. 43); (2) a motion to compel Plaintiff's responses to the Requests for Production of Documents, and for sanctions (see ROA No. 51); and (3) a motion to deem the Requests for Admission admitted, and for sanctions (see ROA No. 47). Defendant did oppose Plaintiff's discovery motions.

On January 26, 2024, the court granted Plaintiff's motion to compel responses to the Form Interrogatories and: (1) directed Defendant to serve verified Code-compliant responses, without objections, to that discovery request within 30 days of the hearing, and (2) awarded Plaintiff $475.00 in sanctions against Defendant, due and payable to Plaintiff within 30 days of the hearing (the 'First Discovery Order'). See ROA No. 68; Clemens Decl., ¶ 4, Ex. 1. Defendant did not appear at the January 26, 2024 hearing. On January 29, 2024, Plaintiff's counsel provided Defendant with notice of the First Discovery Order. See ROA No. 69; Clemens Decl., ¶ 5, Ex. 1. On February 2, 2024, the court granted Plaintiff's motions to compel responses to the Requests for Production of Documents and to deem the Requests for Admission admitted and: (1) directed Defendant to serve verified Code-compliant responses, without objections, and documents responsive to the Requests for Production of Documents within 30 days of the hearing; (2) deemed admitted the genuineness of any documents and the truth of any matters specified in the Requests for Admission; and (3) awarded Plaintiff $712.50 in sanctions against Defendant, due and payable to Plaintiff within 30 days of the hearing (the 'Second Discovery Order'). See ROA No. 73; Clemens Decl., ¶ 6, Ex. 2. Defendant did not appear at the February 2, 2024 hearing. On February 2, 2024, Plaintiff's counsel provided Defendant with notice of the Second Discovery Order. See ROA No. 72; Clemens Decl., ¶ 6, Ex. 2.

The First and Second Discovery Orders made clear that Defendant was required to: (1) serve verified, Code-compliant responses, without objections to the Form Interrogatories and pay Plaintiff $475.00 in sanctions by no later than February 26, 2024, and (2) serve verified Code-compliant responses, without objections, and documents responsive to the Requests for Production of Documents and pay Plaintiff $712.50 in sanctions by no later than March 4, 2024. To date, however, Defendant has not: (1) complied with the First and Second Discovery Orders, or (2) communicated with Plaintiff's counsel regarding those orders. See Clemens Decl., ¶¶ 7-8. Based on the foregoing, the court finds that terminating sanctions are warranted under the totality of the facts and circumstances. As set forth above, the law requires that the court take an incremental approach to sanctions, i.e., greater sanctions may be imposed where less severe sanctions have failed to curb the litigant's misuse(s) of the discovery process. In this case, Defendant failed to: (1) provide responses timely to Plaintiff's discovery requests despite unilaterally being given an extension of time to do so; (2) respond to Plaintiff's counsel's meet and confer efforts; (3) file written oppositions to Plaintiff's discovery motions; (4) appear at the hearings on Plaintiff's discovery motions; or (5) comply with the First and Second Discovery Orders in any way. It appears that Defendant has abandoned the case. Additionally, Plaintiff has demonstrated that Defendant has a history of violating multiple court orders willfully. Defendant's misuses of the discovery process and failure to comply with the court's prior orders has hindered Plaintiff's ability to obtain relevant discovery and prepare for trial in this matter. Furthermore, the court previously has deemed admitted the matters contained within Plaintiff's Requests for Admission which has been dispositive as to certain parts of Plaintiff's case. Terminating sanctions therefore are the next logical step given Defendant's continued lack of participation in this action and the compelling evidence that a less severe sanction will not produce Defendant's compliance with the Civil Discovery Act.

In light of the foregoing, the court grants the motion, strikes Defendant's June 17, 2021 General Denial (see ROA No. 13), and enters default against Defendant. See Cal. Code Civ. P. §§ 2023.010(d) and (g), 2023.030(d), 2030.290(c), 2031.300(c).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, April 19, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 19, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are Calendar No.: Event ID: TENTATIVE RULINGS

3098100 CASE NUMBER: CASE TITLE: DOE VS. LENHOF [IMAGED] 37-2021-00008613-CU-NP-NC encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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3098100