Judge: Cynthia A Freeland, Case: 37-2022-00003697-CU-PO-NC, Date: 2023-12-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 28, 2023

12/29/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00003697-CU-PO-NC WICKS VS EVERSHEIM [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Terminating Sanctions, 10/09/2023

Defendant Georg Eversheim ('Defendant')'s motion for terminating sanctions and for an order dismissing Plaintiffs Joan Wicks and Tracy Wicks (collectively, 'Plaintiffs')'s Complaint with prejudice or, alternatively, for monetary sanctions, is granted in part and denied in part.

On March 9, 2023, Defendant served Plaintiffs with Defendant's Form Interrogatories – General (Set One), Special Interrogatories (Set One), and Request for Identification and Production of Documents (Set One) (collectively, the 'Discovery Requests'). See McKechnie Decl., ¶¶ 4-5. Plaintiffs' responses were initially due by April 10, 2023. See Cal. Code Civ. P. §§ 1010.6(a)(3)(B), 2030.260(a), 2031.260(a).

On April 19, 2023, Defendant's counsel sent Plaintiffs' counsel a meet and confer e-mail asking that responses be served by May 5, 2023. See McKechnie Decl., ¶ 6. On June 26, 2023, Defendant filed and served a motion to compel responses to the Discovery Requests. Ibid., ¶ 7; ROA No. 26. On July 19, 2023, Plaintiffs' counsel contacted Defendant's counsel and represented that Plaintiffs should be able to provide complete responses, without objections, to the Discovery Requests by August 1, 2023. See McKechnie Decl., ¶ 9, Ex. A. On July 21, 2023, the court granted Defendant's unopposed motion to compel and directed Plaintiffs to serve verified Code-compliant responses, without objections, to the Discovery Requests within twenty (20) days of the hearing, or by August 10, 2023 (the 'Discovery Order'). Ibid., ¶¶ 10-11, Ex. B; ROA No. 38. To date, Plaintiffs have not complied with the Discovery Order. See McKechnie Decl., ¶ 12.

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 Calendar No.: Event ID:  TENTATIVE RULINGS

3034403 CASE NUMBER: CASE TITLE:  WICKS VS EVERSHEIM [IMAGED]  37-2022-00003697-CU-PO-NC 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 Plaintiffs' lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. However, the court finds that terminating sanctions are not yet appropriate under the totality of the facts and circumstances. Plaintiffs unquestionably misused the discovery process by failing to: (1) serve timely responses to the Discovery Requests, and (2) comply with the Discovery Order. Plaintiffs' conduct has impeded Defendant's ability to obtain relevant discovery and prepare for trial. However, Plaintiffs do not have an extensive history of discovery abuses – indeed, while they clearly flouted Defendant's attempts to obtain discovery, the Discovery Order is the only identified court order that Plaintiffs violated. Moreover, there is insufficient evidence that Plaintiffs' conduct was willful, i.e., that they consciously or intentionally failed to act. See Sauer v. Sup. Ct. (1987) 195 Cal. App. 3d 213, 227-228. Accordingly, Defendant's request for terminating sanctions is denied.

Nor are evidentiary and/or issue sanctions appropriate. As explained above, the court takes an incremental approach to sanctions. Evidentiary or issue sanctions would be warranted only if a lesser sanction, i.e., monetary sanctions, proved ineffective. In this case, the court has not, before this ruling, sanctioned Plaintiffs monetarily or put Plaintiffs on notice that terminating and/or evidence/issue sanctions might follow should they persist in violating court orders. Given this, the court cannot conclude that monetary sanctions would be insufficient to compel Plaintiffs' compliance with the Discovery Order.

Consequently, the court grants Defendant's request for monetary sanctions in the amount of $2,073.00.

In light of the foregoing, the court: (1) denies Defendant's motion for terminating sanctions, and (2) grants Defendant's request for monetary sanctions and awards Defendant $2,073.00 in sanctions against Plaintiffs, jointly and severally, payable directly to Defendant within twenty-one (21) days of this hearing. The court places Plaintiffs on notice that further misuses of the discovery process and/or their continued failure to participate in discovery will result in more severe sanctions in the future, inclusive of terminating sanctions.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 29, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 29, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are 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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