Judge: Daniel S. Murphy, Case: 20STCV44829, Date: 2022-08-15 Tentative Ruling

Case Number: 20STCV44829    Hearing Date: August 15, 2022    Dept: 32

BACKGROUND

            On November 23, 2020, Kontakt International, Inc. (“Plaintiff”) filed this action against Scosi Orthopedics, Dr. Allen Lu, and Scott Weissman, alleging breach of contract and conversion. The complaint arises from a transaction where Plaintiff delivered facemasks to Defendants, who have failed to pay. On December 24, 2020, Defendants filed a cross-complaint, alleging that Plaintiff misrepresented the medical grade of the masks.  

            On February 4, 2022, Plaintiff filed a motion to compel responses to Requests for Production (“RFP”) propounded to Defendants Scosi Orthopedics and Dr. Allen Lu (collectively “Defendants”). Defendants had served unverified responses and had not produced all of the documents that they indicated they would produce. Defendants did not respond to meet and confer and did not oppose the motion. As a result, the Court granted Plaintiff’s motion on March 4, 2022, ordering Defendants to produce responses within 15 days and to pay $5,000 in sanctions within 30 days.

            On July 22, 2022, Plaintiff filed the instant motion for terminating sanctions based on Defendants’ failure to comply with the Court’s March 4 order. Defendants have not produced further responses or paid any sanctions.

LEGAL STANDARD

“[I]f a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . .” (Code Civ. Proc., § 2031.310, subd. (i).) In lieu of, or in addition, the court may also impose a monetary sanction. (Ibid.)

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. 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.) “The penalty 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.” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 959.)

DISCUSSION

            It is undisputed that Defendants have not produced any documents or paid sanctions according to the court order. Defendants argue that they relied on their prior counsel, Michael Bowse, and believed that Mr. Bowse had ensured their compliance with discovery. (See Lu Decl. ¶¶ 13-14.) After the March 4 court order, Mr. Bowse withdrew as Defendants’ counsel, and Defendants claim that they are attempting to retrieve responsive documents from Bowse. (Id., ¶¶ 17-18.)

However, it is unclear how Mr. Bowse’s withdrawal renders Defendants unable to produce responsive documents. Defendants do not aver that only physical copies are available and that they provided the only copies to Bowse. Nor does this explain Defendants’ failure to pay sanctions.

Nevertheless, terminating sanctions are too drastic at this stage. Sanctions should be incremental and only end with the drastic solution of termination if lesser sanctions prove ineffective. (See Doppes, supra, 174 Cal.App.4th at p. 992.) The remedy should be proportional to the wrongdoing. (Wilson, supra, 163 Cal.App.3d at p. 959.) Here, Defendants have only disobeyed one court order, and lesser sanctions have not been imposed. Under these circumstances, the Court is not inclined to immediately impose terminating sanctions. (See Doppes, supra, 174 Cal.App.4th at p. 992 [“The trial court has broad discretion in selecting discovery sanctions”].) The Court would have been inclined to consider issue, evidentiary, or monetary sanctions as an alternative, but Plaintiff did not request such sanctions.

CONCLUSION

            Plaintiff’s motion for terminating sanctions is DENIED. Defendants Scosi Orthopedics and Allen Lu are to produce responsive documents within 10 days of this order.