Judge: Deborah C. Servino, Case: 30-2020-01169208, Date: 2022-12-02 Tentative Ruling
Defendant Rand Technology, LLC’s motion for terminating sanctions and dismissal of Plaintiff Andrew Murphy’s action with prejudice, or in the alternative, evidentiary and monetary sanctions, is denied.
Applicable Law
“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Code Civ. Proc., § 2023.040.) For issue or evidentiary sanctions, a separate statement is required. (Cal. Rules of Court, rule 3.1345(a)(7).)
Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court’s discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) The court is not required to grant any particular sanction or any sanctions at all. (Pember v. Superior Court (1967) 66 Cal.2d 601, 604.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (Code Civ. Proc., § 2031.300, subd. (c) [requests for production].)
Courts consider a wide variety of factors before imposing such sanctions. For example, when interrogatories are involved, the court may consider: (1) how much time has elapsed since the interrogatories were served; (2) whether the party obtained extensions of time; (3) the number of interrogatories propounded; (4) whether the unanswered questions are material; (5) whether the unanswered questions sought information that was difficult to obtain; (6) whether any answers provided were evasive or incomplete; (7) how many questions remain unanswered; (8) whether the answering party acted in good faith and with reasonable diligence; (9) whether there were prior court orders compelling discovery and the answering party’s compliance with those orders; (10) whether the party was unable to comply with any previous discovery order; (11) whether an order allowing more time to answer would enable the answering party to supply the necessary information; (12) how much time remains before the discovery cut-off date; (13) the communications between the attorneys regarding the necessity, content, or timing of responses; (14) the prejudicial effect of the conduct being sanctioned on the moving party; (15) any pattern of evasiveness or obstruction. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795–797.)
The trial court should tailor the sanction for such conduct to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) The court cannot impose sanctions as punishment; the choice of sanctions should not give the moving party more than it would have gotten had the discovery been responded to. (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992.) A trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: The conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. Generally, a decision to order terminating sanctions should not be made lightly. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) 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. Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Ibid.; Stein v. Hassen (1973) 34 Cal.App.3d 294; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)
Merits
Here, Defendant contends that terminating, or, alternatively, evidentiary or monetary sanctions are appropriate because Plaintiff has refused to comply with the court’s April 29, 2022 order requiring Plaintiff to provide further responses to form interrogatories – general, set two, and form interrogatories – employment law, set one.
In Opposition, Plaintiff acknowledges the court’s order. However, Plaintiff’s counsel states that around the time the court ordered responses were due – May 23, 2022, his wife suffered from late-term pregnancy complications and birth of their child, making the responses an afterthought. (Cojocnean Decl., at ¶¶ 5-7.) Plaintiff’s counsel also states that from the outset of litigation (excluding Plaintiff’s deposition) through April 29, 2022, his interactions with defense counsel were conducted exclusively with former Jackson Lewis attorney Kaveh Hosseini. (Cojocnean Decl., at ¶ 4.) After not having any communication with defense counsel since April 29, 2022, Plaintiff’s counsel received communication in July 2022, from a new handling attorney at Jackson Lewis stating Hosseini had left the firm and that another attorney would be taking over this matter. (Cojocnean Decl., at ¶¶ 9-10.) Thereafter, the parties had several communications, including a telephone call on August 8, 2022 regarding settlement. (Cojocnean Decl., at ¶¶ 11-12.) At no time prior to the filing of the instant motion did defense counsel mention Plaintiff’s outstanding discovery responses. (Cojocnean Decl., at ¶ 13.) On August 24, 2022, Plaintiff served substantive and objection-free responses to Defendant’s discovery requests. (Cojocnean Decl., at ¶ 14.) On August 25, 2022 Plaintiff served supplemented, substantive, and objection-free responses to Defendant’s discovery requests that are the subject of the current application. (Cojocnean Decl., at ¶ 15.) Defendant did not file a reply.
Given that Plaintiff asserts that he complied with the court’s order on August 25, 2022, approximately 11 months before the scheduled trial date, terminating sanctions do not appear to be appropriate at this time. As for evidentiary sanctions, Defendant did not submit a separate statement. In any event, evidentiary sanctions would likewise be a windfall for Defendant. Finally with regard to monetary sanctions, that request is also denied based upon the facts of this case.
If Plaintiff fails to obey any other future discovery orders, the court will consider more severe sanctions (including issue, evidentiary, and terminating sanctions).
Plaintiff shall give notice of the ruling.