Judge Cynthia A Freeland, Case 37-2022-00026008-CU-PA-NC 2023-10-20 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00026008-CU-PA-NC, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 19, 2023

10/20/2023 10:01:00 AM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited PI/PD/WD - Auto Motion Hearing (Civil) 37-2022-00026008-CU-PA-NC HERNANDEZ-DAVIS VS MURRAY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 09/05/2023

Defendants Dominique C. Murray and Amazon Logistics, Inc. (collectively, 'Defendants')'s motion for terminating sanctions and additional 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 Plaintiff Adriana Hernandez-Davis ('Plaintiff')'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 February 10, 2023, Ms. Murray electronically served Plaintiff with Ms.

Murray's Form Interrogatories – General (Set One), Special Interrogatories (Set One), Request for Documents (Set One), and Request for Admissions (Set One) (collectively, the 'Discovery Requests').

See Carroll Decl., ¶ 3. Plaintiff's responses were initially due by March 15, 2023. See Cal. Code Civ. P. §§ 1010.6(a)(3)(B), 2030.260(a), 2031.260(a), 2033.250(a). Despite numerous extensions and meet and confer efforts, Plaintiff failed to provide responses. On June 13, 2023, Ms. Murray filed a motion to Calendar No.: Event ID: TENTATIVE RULINGS

3029378 CASE NUMBER: CASE TITLE: HERNANDEZ-DAVIS VS MURRAY [IMAGED] 37-2022-00026008-CU-PA-NC compel Plaintiff to provide responses to the Discovery Requests, and for sanctions (the 'Discovery Motion'). See Carroll Decl., ¶ 4; ROA No. 39. On August 4, 2023, Plaintiff's former counsel, Donald D.

Hiney, filed a declaration in response to the Discovery Motion. See ROA No. 41. Mr. Hiney represented that, despite several attempts, he was unable to communicate with Plaintiff to procure her discovery responses or effectively represent her in this matter. On August 8, 2023, Mr. Hiney filed a request for dismissal as to Plaintiff Jocelyn Davis. See ROA No. 42. On August 18, 2023, the court entered an order relieving Mr. Hiney as counsel for Plaintiff owing to Plaintiff's failure to respond to discovery and settlement offers from Defendants. See Carroll Decl., Ex. B; ROA Nos. 50, 51. That same day, the court granted Ms. Murray's unopposed Discovery Motion and: (1) ordered Plaintiff to serve verified Code-compliant responses, without objections, and documents responsive to the Form Interrogatories, Special Interrogatories, and Request for Documents within 10 days of the hearing; (2) deemed admitted the genuineness of any documents and the truth of any matters specified in the Request for Admission; and (3) awarded Ms. Murray $250.00 in sanctions as to the Request for Admissions against Plaintiff, due within 30 days of the hearing (the 'Discovery Order'). See Carroll Decl., Ex. A; ROA No. 49. To date, Plaintiff has failed to comply with the Discovery Order in all respects. See Carroll Decl., ¶ 7.

The foregoing constitutes grounds to grant the motion. As set forth above, the law requires that the court take an incremental approach to sanctions, i.e., greater sanctions may be imposed in instances where less severe sanctions have failed to curb the litigant's misuse(s) of the discovery process. In this case, the evidence demonstrates that Plaintiff failed to: (1) provide timely responses to the Discovery Requests despite being given multiple extensions of time to do so; (2) oppose the Discovery Motion; and (3) comply with the Discovery Order. Additionally, Plaintiff appears to have abandoned her case as evidenced by Mr. Hiney's representations and subsequent withdrawal from this action as well as Plaintiff's failure to: (1) appear at the hearing on Defendants' ex parte application to advance the hearing on this matter, and (2) file a written opposition to the present motion. Moreover, less severe sanctions, i.e., monetary sanctions, were sufficient to compel Plaintiff's compliance with her discovery obligations.

Consequently, the court finds that terminating sanctions are warranted under the totality of the facts and circumstances. See Cal. Code Civ. P. §§ 2023.010(g), 2023.030(d)(3).

Defendants' request for additional monetary sanctions in the amount of $450.00 is denied because they have not provided sufficient evidence substantiating such a request so that the court can engage in the appropriate reasonableness analysis.

In light of the foregoing, the court: (1) grants the motion and dismisses Plaintiff's Complaint as to Defendants with prejudice, and (2) denies Defendants' request for additional monetary sanctions.

This is the tentative ruling for the hearing at 10:00 a.m. on Friday, October 20, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 20, 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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