Judge David S. Cunningham, Case Number: 19STCV36328, Date: 2024-02-08 Tentative Ruling

Judge: David S. Cunningham, Case: 19STCV36328, Date: 2024-02-08 Tentative Ruling

Tentative Ruling Re: Motion for Monetary, Terminating, and Contempt Sanctions

Plaintiff’s motion for monetary, terminating, and contempt sanctions is granted in part. The Court grants a monetary sanction in the amount of $4,950.00.

The remainder of the motion is continued. The Court intends to set an order to show cause regarding terminating, evidentiary, issue, and contempt sanctions. The Court will select the date for the order to show cause at the hearing.

On 6/22/22, Plaintiff served Carson Distributing, LLC (“Carson”) with requests for admission, special interrogatories, and document requests.

On 1/18/23, the Court held an informal discovery conference and granted Plaintiff leave to file motions to compel against Carson.

3/21/23, the Court granted the three motions, which were unopposed, ordered Carson to provide responses by 4/20/23, and imposed a $5,430.00 monetary sanction.

On 1/17/24, Plaintiff filed the instant motion against Carson. Plaintiff requests monetary, terminating, evidentiary, issue, and contempt sanctions for failure to comply with the 3/21/23 order.

Under California law, “[o]nce a party or witness has been ordered to attend a deposition, or to answer discovery, or to produce documents, more severe sanctions are available for continued refusal to make discovery.” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 8:2145, emphasis in original.)

“If a party fails to obey a discovery order, the court may impose whatever sanctions [it determines in its discretion] are just[.]” (Id. at ¶ 8:2175; see also id. at ¶ 8:2200.) This includes monetary, terminating, evidentiary, issue, and contempt sanctions. (See ibid.; see also Code Civ. Proc. § 2023.030, subds. (a)-(e).)

“Willful ‘disobedience’ must be shown to establish contempt [citation].” (Id. at ¶ 8:2146.) “But for purposes other than contempt, ‘disobedience’ does not require a showing of willfulness.” (Ibid., emphasis in original.) “Failure to obey (i.e., noncompliance with the court's order) is all that need be shown.” (Ibid.)

On the other hand, “numerous cases hold that severe sanctions (i.e., evidence or terminating sanctions) for failure to comply with a court order are allowed only where the failure was willful.” (Id. at ¶ 8:2147; see also, e.g., Aghaian v. Minassian (2021) 64 Cal.App.5^th 603, 618-619 [generally noting that, “absent unusual circumstances, nonmonetary sanctions are warranted only if a party willfully fails to comply with a court order”].)

Ultimately, though, “sanctions are authorized only to the extent provided by the particular” statute at issue. (Edmon & Karnow, supra, at ¶ 8:2146.) Plaintiff seeks sanctions pursuant to Code of Civil Procedure section 2023.030. (See Notice of Motion, p. 2.) Section 2023.030 does not “require[] willfulness, much less an express finding of such.” (Aghaian, supra, 64 Cal.App.5^th at 620.)

Terminating sanctions are typically reserved for repeat violations. (See Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4^th 377, 390 [instructing that a court “is justified in imposing” terminating sanctions “where a violation is willful, preceded by a history of abuse, and the evidence show that less severe sanctions would not produce compliance with the discovery rules”], emphasis added; see also Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4^th 1093, 1106 [instructing that “the sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions”], emphasis added.)

Given this rule, the Court is inclined to grant a second monetary sanction and to set an order to show cause as to the other requested sanctions. To date, Carson is accused of violating one order – the 3/21/23 order. While the record shows unsuccessful attempts by Plaintiff’s counsel to communicate with defense counsel to obtain responses and payment of the first monetary sanction in relation to the 3/21/23 order (see Cohen Decl., ¶¶ 3-10), the situation here does not yet involve multiple violations of multiple orders. Providing Carson an opportunity to appear at an order to show cause – and one more chance to comply – before granting more severe sanctions is the fair approach.

Accordingly, the Court grants Plaintiff’s motion in part. The Court imposes a second monetary sanction against Carson in the amount of $4,950.00 (eight hours to prepare the motion and one hour to appear at the hearing at a rate of $550.00 per hour). (See id. at ¶ 12.)[1]

During the hearing, the Court also intends to set a date for an order to show cause. If defense counsel fails to appear at the order to show cause, or if he otherwise fails to establish that Carson will comply with the 3/21/23 order, the Court will be free to impose some or all of the other requested sanctions at that time.

[1] Plaintiff seeks $7,150.00. (See ibid.) Since the motion is unopposed, the amount is excessive. Plaintiff’s counsel did not need to draft a reply.