Judge: Daniel M. Crowley, Case: 21STCV09912, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV09912    Hearing Date: August 17, 2022    Dept: 28

Defendant Kenyon Plastering of Southern California’s Motion for Sanctions

Having considered the moving, opposing and reply papers, the Court rules as follows.


On March 12, 2021, Plaintiff Dennis Turner (“Plaintiff”) filed this action against Defendants Mills Creek Residential Services, LLC (“Mills”), Modera Apartments, LLC (“Modera”), Rolls Scaffold & Equipment, Inc. (“Rolls S&E”) and Rolls Scaffold, Inc. (“Rolls”) for general negligence, products liability and premises liability. Plaintiff later amended the complaint to include Defendant Mill Creek Fund II, LLC (“MCF”), MCREF Highland and Selma, LLC (“MCREF”), Kenyon Plastering of Southern California (“Kenyon”) and MCRT California Construction LP (“MCRT”).

On June 29, 2021, Rolls, Madera, and Rolls S&E were dismissed, without prejudice, pursuant to Plaintiff’s request.

On July 6, 2021, Kenyon filed an answer. On September 22, 2021, Kenyon filed a Cross-Complaint against Cross-Defendant Mill Creek Residential Services (“MCRS”) for express contractual indemnity, breach of contract, equitable indemnity, contribution, declaratory relief – duty to indemnify and declaratory relief – duty to defend. Kenyon later amended the Cross-Complaint to include Cross-Defendant MCRT California Construction, LP (“MCRT”) and Trademark Construction Co., Inc. (“Trademark”). On October 22, 2021, MCRS filed an answer.

On August 27, 2021, Mills, MCF and MCREF filed an answer and a Cross-Complaint against Cross-Defendant Kenyon for express contractual indemnity, breach of contract, equitable indemnity, contribution, declaratory relief – duty to indemnify and declaratory relief – duty to defend. On September 22, 2021, Kenyon filed an answer.

On July 18, 2022, Kenyon filed a Motion for Sanctions to be heard on August 17, 2022. On July 14, 2022, Mills, MCF, MCRT and MCREF filed a notice of joinder to the motion; no substantive document has been filed. On August 5, 2022, Plaintiff filed an opposition. On July 8, 2022, Kenyon filed a reply.

The trial date currently set for February 7, 2023.


Kenyon requests the Court impose terminating sanctions on Plaintiff and grant attorney’s fees and costs. Additionally, Kenyon requests the Court impose $3,700.00 in sanctions on Plaintiff.

Plaintiff requests the Court deny the motion.



Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison& Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

CCP § 128.7 provides the Court may determine if the demand and allegations were formed after an inquiry reasonable under the circumstances, and if Plaintiff’s complaint had allegations and other factual contentions. Should the Court find that counsel violated this, sanctions may be imposed.

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "A decision to order terminating sanctions should not be made lightly. But where 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." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these 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." (Deyo, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)


Kenyon’s request for terminating sanctions is based on allegations of lack of due diligence from Plaintiff’s attorneys along with untimely and unverified discovery responses. The Court does not find terminating sanctions appropriate; terminating sanctions are generally only appropriate when there is a history of abuse and a display that less severe sanctions would not produce compliance otherwise. The Court notes that there have been no other methods employed to attempt to ameliorate the issues alleged. There have been no motions to compel discovery, nor any demurrer or motion for summary judgment heard. Simply adding and dismissing parties is not strong enough evidence of lack of reasonable inquiry to impose sanctions on a party. A request for dismissal based on lack of evidentiary support should be brought in a motion for summary judgment. The Court will not award monetary sanctions of any sort, finding the basis for the motion vague at best.


Defendant Kenyon Plastering of Southern California’s Motion for Sanctions is DENIED.

Defendant is ordered to give notice of this ruling.