Judge: Cynthia A Freeland, Case: 37-2022-00003697-CU-PO-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 23, 2024

05/24/2024  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, 02/13/2024

Defendant Georg Eversheim ('Defendant')'s motion for terminating sanctions or, in the alternative, for monetary sanctions is granted in part and denied in part.

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 Plaintiffs Joan Wicks and Tracy Wicks (collectively, 'Plaintiffs')'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 March 9, 2023, Defendant served each Plaintiff with Defendant's Form Interrogatories – General (Set One), Special Interrogatories (Set One), and Requests for Production of Documents (Set One) (collectively, the 'Discovery Requests'). See Cruz Decl., ¶¶ 4-5.

Plaintiffs' responses initially were 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 email asking that responses be served by May 5, 2023. See Cruz Decl., ¶ 6. On June 26, 2023, Calendar No.: Event ID:  TENTATIVE RULINGS

3086876 CASE NUMBER: CASE TITLE:  WICKS VS EVERSHEIM [IMAGED]  37-2022-00003697-CU-PO-NC 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 were experiencing serious medical problems but would provide complete responses, without objections, to the Discovery Requests by August 1, 2023. Ibid., ¶ 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 20 days of the hearing, or by August 10, 2023 (the 'Discovery Order'). Ibid., ¶ 10, Ex. B; ROA No. 38. Plaintiffs failed to comply with the Discovery Order.

On October 9, 2023, Defendant filed and served a motion for terminating sanctions or, in the alternative, for monetary sanctions given Plaintiffs' failure to comply with the Discovery Order (the 'First Sanctions Motion'). See ROA No. 41. Plaintiffs did not oppose the First Sanctions Motion. However, on December 28, 2023 – the day before the hearing on the First Sanctions Motion – Plaintiffs' counsel served partial responses to the Discovery Requests, exclusive of responses to Defendant's Request for Production of Documents and Special Interrogatories propounded to Tracy Wicks ('Tracy'). See Cruz Decl., ¶ 12. On December 29, 2023, the court heard the First Sanctions Motion and: (1) denied Defendant's request for terminating sanctions; (2) awarded Defendant $2,073.00 in sanctions against Plaintiffs, jointly and severally, payable to Defendant within 21 days of the hearing, or by January 19, 2024; and (3) placed Plaintiffs on notice that further misuses of the discovery process and/or their continued failure to participate in discovery would result in more severe sanctions in the future, inclusive of terminating sanctions (the 'Sanctions Order'). Ibid., ¶ 13; ROA No. 62.

On January 4, 2024, Defendant's counsel emailed Plaintiffs' counsel indicating that Defendant was yet to receive Tracy's outstanding discovery responses. See Cruz Decl., ¶ 16, Ex. C. On February 5 and 6, 2024, Defendant's counsel made further attempts to reach Plaintiffs' counsel; however, Defendant's counsel has not received any further response. Ibid., ¶¶ 17-18, Ex. D. On February 13, 2024, Defendant filed and served the pending motion. See ROA No. 67. To date, Tracy's discovery responses as well as the monetary sanctions awarded in conjunction with the Sanctions Order remain outstanding. See Cruz Decl., ¶ 21.

The court finds that terminating sanctions are warranted under the totality of the facts and circumstances. As set forth above, the uncontroverted evidence establishes that while Plaintiffs provided partial responses to the Discovery Requests the day before the hearing on the First Sanctions Motion, Plaintiffs, to date, have not fully complied with the Discovery Order. Moreover, Plaintiffs did not oppose the First Sanctions Motion and have not complied with the Sanctions Order in any respect, including payment of the monetary sanctions. Furthermore, Plaintiffs are not responding to Defendant's meet and confer efforts. Based on the foregoing, it is apparent that: (1) Plaintiffs have a history of violating multiple court orders willfully, and (2) monetary sanctions were insufficient to compel Plaintiffs' compliance with their discovery obligations. In addition, the court previously has placed Plaintiffs on notice that further misuses of the discovery process could result in the imposition of terminating sanctions.

In light of the foregoing, the court grants the motion and dismisses this action with prejudice. See Cal. Code Civ. P. §§ 2023.010(d) and (g), 2023.030(d)(3), 2030.290(c), 2031.300(c). As the court is granting the request for terminating sanctions, the alternative request for monetary sanctions is denied.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, May 24, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of May 24, 2024. 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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