Judge Daniel M. Crowley, Case Number: 21STCV42058, Date: 2023-10-04 Tentative Ruling

Plaintiff’s request for monetary sanctions against pro per Defendant Dan Kloss is granted in the reduced amount of $1,650.00. Sanctions are payable within 20 days.

Plaintiff Ramiro De La Torre (“De La Torre”) (“Plaintiff”) moves unopposed for terminating sanctions and monetary sanctions against pro per Defendant Dan Kloss (“Kloss”) (“Defendant”) on the grounds Kloss has violated this Court’s 10/4/23 Minute Order compelling him to provide verified responses to Plaintiff’s Form Interrogatories – General (Set One) and Request for Production of Documents (Set One), produce responsive documents, appear for and produce documents at deposition, and pay monetary sanctions. (Notice of Motion, pg. 2; §§2023.030(a), (d)(1), (4); 2023.010(g); 2030.290(c); 2025.450(h); 2031.300(c).) Plaintiff seeks an order striking Kloss’ Answer, entering a default against Kloss, and ordering Kloss to pay Plaintiff monetary sanctions in the amount of $7,535.00. (Notice of Motion, pg. 2.) Finally, since this matter is stayed in regard to Defendant Precision Forging Dies, Inc., Plaintiff requests this Court vacate the Final Status Conference set for September 20, 2024 and the Jury Trial set for September 30, 2024. (Notice of Motion, pg. 2.)

On November 15, 2021, Plaintiff filed his initial Complaint against Defendants Precision Forging Dies, Inc. (“PFD”)[1] and Kloss (collectively, “Defendants”). Plaintiff filed his operative first amended complaint (“FAC”) on July 14, 2022, alleging six causes of action: (1) hostile work environment – harassment on the basis of race, ancestry, color, and national origin; (2) discrimination on the basis of race, ancestry, color, and national origin; (3) retaliation for opposing discrimination and harassment; (4) failure to prevent discrimination, harassment, or retaliation; (5) wrongful discharge in violation of public policy; and (6) intentional infliction of emotional distress. (See FAC.) Defendants filed an answer to Plaintiff’s FAC on November 21, 2022.

On April 26, 2023, Plaintiff propounded Form Interrogatories – Employment (Set One) (“FROG”) and Request for Production of Documents (Set One) (“RFP”) to Kloss. On August 3, 2023, Plaintiff propounded Requests for Admission (Set One) (“RFA”) and Special Interrogatories (Set One) (“SROG”). As of the date of filing this hearing, Kloss has not responded to any of Plaintiff’s discovery requests. (Decl. of Hutchins ¶7.)

On July 26, 2023, Plaintiff served Kloss with an Amended Deposition Notice, noticing the deposition for August 10, 2023, at 10:00 a.m. at 1230 Rosecrans Avenue, Suite 200, Manhattan Beach, California 90266. (Decl. of Hutchins ¶9.) On August 10, 2023, Kloss did not appear at the deposition or produce documents responsive to the deposition notice and Plaintiff took a Certificate of Nonappearance. (Decl. of Hutchins ¶10.)

On October 4, 2023, this Court heard (1) Plaintiff’s Motion to Compel Kloss’ Attendance and Production of Documents at Deposition and Request for Monetary Sanctions in the Amount of $1,750.00 Against Kloss; (2) Plaintiff’s Motion to Compel Kloss to Provide Responses to Plaintiff’s FROG and Request for Monetary Sanctions in the Amount of $1,600.00; and (3) Plaintiff’s Motion to Compel Defendant Dan Kloss to Provide Responses to Plaintiff’s RFP and Request for Monetary Sanctions in the Amount of $1,600.00. This Court ordered Kloss (1) to appear for deposition, produce responsive documents, and pay Plaintiff sanctions in the amount of $1,250.00 within 20 days of the order; (2) to provide verified, objection-free responses to Plaintiff’s FROG and pay Plaintiff sanctions in the amount of $1,100.00 within 20 days of the order; and (3) to produce responsive documents and provide verified, objection-free responses to Plaintiff’s RFP within 20 days of the order. (10/4/23 Minute Order.)

On October 4, 2023, Plaintiff served Kloss with a Second Amended Deposition Notice, noticing the deposition for October 20, 2023, at 10:00 a.m. at 1230 Rosecrans Avenue, Suite 200, Manhattan Beach, California 90266. (Decl. of Hutchins ¶12.) Kloss did not serve objections to this deposition notice. (Decl. of Hutchins ¶12, Exh. C.) On October 20, 2023, Defendant Kloss did not appear at the deposition or produce documents responsive to the Deposition Notice, and Plaintiff took a Certificate of Nonappearance. (Decl. of Hutchins ¶13, Exh. D.)

As of the date of this hearing Kloss has not provided responses to Plaintiff’s FROG or RFP, produced responsive documents, appeared and produced documents at his properly noticed deposition, or paid Plaintiff monetary sanctions in the amounts of $1,250.00 and $1,100.00. (Decl. of Hutchins ¶14.)

On March 6, 2024, Plaintiff filed the instant motion. As of the date of this hearing Kloss has not filed an opposition.

The Court, “after notice to any affected party . . . and after opportunity for hearing,” may impose terminating and/or monetary sanctions for misuses of the discovery process. (C.C.P. §2023.030(a) and (d).) Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery. (C.C.P. §§2023.010(d), (g).)

“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.) When deciding whether to impose terminating sanctions, courts generally weigh three factors: (1) whether the party subject to the sanction acted willfully, (2) the detriment to the party seeking discovery, and (3) the number of formal and informal unsuccessful attempts to obtain discovery. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Nonmonetary sanctions require evidence of willful violations of discovery orders or a history of egregious abuses of discovery. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486.) A prerequisite to the imposition of nonmonetary sanctions is willful disobedience of a court order. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403.) By requiring a violation of a discovery order before imposing nonmonetary sanctions, California courts can be sure that the offending party does not intend to comply with the discovery request. (Ruvalcaba v. Government Employees Insurance Co. (1990) 222 Cal.App.3d 1579, 1581.) “[A] terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Plaintiff moves for terminating sanctions on the grounds Kloss has willfully disobeyed multiple discovery orders. (Motion, pg. 6.) Kloss failed to comply with all parts of the Court’s October 4, 2023, Ruling. Here, terminating sanctions are appropriate because Plaintiff is unable to obtain the essential discovery in order to prove his claims at trial and prior monetary sanctions have proven effective in compelling Kloss to comply with his discovery obligations. Therefore, Plaintiff is entitled to an order striking Kloss’s Answer and rendering a default against Kloss.

Based on the foregoing, Plaintiff’s motion for terminating sanctions is granted.

In addition to or in lieu of any other sanction, the court may order the disobedient party or counsel responsible or both to pay the reasonable expenses, including attorney fees, incurred as a result of the failure to obey (including fees on the sanctions motion). (C.C.P. §2023.030(a).)

Plaintiff requests monetary sanctions in the amount of $7,535.00 against Kloss for reasonable expenses, attorneys’ fees, and costs in connection with the preparation, filing, and service of the instant motion. Plaintiff’s counsel declares her hourly rate is $550.00/hour, and that counsel spent 12.7 hours in preparation of this motion and anticipates an additional hour attending a hearing on the motion. (Decl. of Hutchins ¶16, Exh. E.) The Court determines Plaintiff’s counsel’s hourly rate is reasonable based on the experience of the Court, but that the instant motion should not have taken longer than 2 hours to prepare. Plaintiff’s request for monetary sanctions is therefore granted in the reduced amount of $1,650.00. ($550.00/hour x 3 hours).

Based on the foregoing, Plaintiff’s motion for monetary sanctions against Respondent is granted in the reduced amount of $1,650.00. Sanctions are payable within 20 days.

Plaintiff’s unopposed motion for terminating sanctions against Kloss is granted. Plaintiff is entitled to an order striking Kloss’s Answer and rendering a default against Kloss. The Final Status Conference set for September 20, 2024, and Jury Trial set for September 30, 2024, are vacated.

Plaintiff’s request for monetary sanctions against Kloss is granted in the reduced amount of $1,650.00. Sanctions are payable within 20 days.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes this action is stayed as to PFD.