Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This action arises from a dispute between a school district and one of its students.  Plaintiff Liav Mann alleges that as a member of the wrestling team at Beverly Hills High School, he was physically and verbally abused by his wrestling coach, Ryan Faintich.   

According to the Complaint, Faintich would tell members of his team to kick Plaintiff in the genitals and instructed Plaintiff not to fight back.  (Compl. ¶¶10-13.)  On one occasion, Faintich wrestled with Plaintiff, purposely headbutting him, leaving lumps on his forehead.  (Compl. ¶ 22.)  Ultimately, Faintich dismissed Plaintiff from the wrestling team, and as Plaintiff alleges, prevented Plaintiff from enrolling in a regular P.E. class, resulting in an “F” grade that sunk his grade point average.  (Compl. ¶¶39-42.) 

The operative complaint alleges claims for (1) negligence against Defendant Beverly Hills Unified School District (“the District”), (2) negligence against Faintich, (3) negligent hiring, retention, and supervision against the District, (4) intentional infliction of emotional distress against both defendants, and (5) breach of fiduciary duty against both defendants.   

On August 23, 2023, the District propounded document requests on Plaintiff.  (Pitts Decl. ¶ 3, Ex. A).  Responses were due on or before September 27, 2023. (Pitts Decl. ¶ 4).  Just prior to the original deadline to respond, Plaintiff’s counsel claimed they did not receive the discovery requests and asked for a two-week extension.  The District granted the extension. (Pitts Decl. at ¶ 5).  

When no responses arrived by the new deadline of October 11, 2023, the District’s counsel asked about the discovery.  (Pitts Decl. ¶ 6, Ex. B). Plaintiff’s counsel responded that responses, without objections, would be sent by November 13, 2023.  No responses were ever served. (Pitts Decl. ¶ 7, Ex. C).  As no responses were served by November 13, 2023, the District’s counsel sent another letter to Plaintiff’s counsel again seeking Plaintiff’s discovery responses.  There was no response to this letter, and no discovery responses were served. (Pitts Decl. at ¶ 9, Ex. D).  

At the case management conference on this matter on March 7, 2024, the District’s counsel reported to the Court that Plaintiff had been non-responsive as to all discovery served to Plaintiff throughout this matter.  (Pitts Decl. ¶ 10).  The Court ordered the parties to meet and confer regarding the outstanding discovery, and if Plaintiff remained non-responsive, for the District to file its motions to compel without the need for appearing at an informal discovery conference.  (Pitts Decl. ¶ 11, Ex. E).  

Following the hearing on March 7, 2024, the District’s counsel asked Plaintiff’s counsel about their availability to meet and confer, as instructed by the Court, regarding the outstanding discovery.  The March 7, 2024 communication from the District’s counsel was ignored. (Pitts Decl. at ¶ 12, Ex. F).  

With Plaintiff continuing to be non-responsive, the District filled four motions to compel, including to compel Plaintiff to finally appear for a deposition.  In an effort to avoid the sanctions requested with the motions, Plaintiff for the first time served some responses to the long overdue discovery with Plaintiff’s oppositions to the District’s motions.  In its reply briefs and again at the May 9, 2024 hearings, the District noted that while Plaintiff responded to some of the requests, Plaintiff did so deficiently and failed to produce all responsive documents.  The Court took the matter under submission. (Pitts Decl. at ¶ 14).  

While the matter was under submission, the District continued its efforts to get Plaintiff to comply with his discovery obligations. The District noticed Plaintiff’s deposition for July 24, 2024 and again prompted Plaintiff to provide complete responses to the document requests and produce all responsive documents.  Plaintiff failed to do so.  (Pitts Decl. at ¶ 15, Ex. G).  

On June 25, 2024, counsel for the parties held a teleconference call, during which Plaintiff’s counsel indicated that supplemental responses and the responsive documents would be coming soon. They never did.  (Pitts Decl. ¶ 17).  

The Court filed and served its ruling regarding the District’s motions to compel on July 1, 2024, which, in part, required Plaintiff to provide Code-complaint responses to the District’s document requests, to produce all responsive documents within 10 days of the order, to attend a deposition within 75 days of the order, and to pay $750 in monetary sanctions.  Plaintiff, who did not attend the noticed deposition for July 24, 2024, has not complied with any of these portions of the Court’s orders. (Pitts Decl. ¶ 18, Ex. H).  

On July 18, 2024, the District sent additional correspondence to Plaintiff’s counsel referring to the Court’s July 1, 2024 orders, and asking if Plaintiff intended to comply with the orders and provide Code-compliant responses to the long overdue discovery. This correspondence was ignored. (Pitts Decl. ¶ 19, Ex. I.) 

Meanwhile, this Court has repeatedly had to continue the case management conference on this matter because Plaintiff had failed to serve the complaint on Defendant Ryan Faintich. Case management conferences have been scheduled for December 11, 2023, March 7, 2024, June 6, 2024, and August 6, 2024.  (Pitts Decl. ¶ 21). Prior to the March 7, 2024 case management conference, Plaintiff filed a case management conference statement indicating that Mr. Faintich had already been served, which Plaintiff’s counsel repeated at the hearing. This was not true. (Pitts Decl. at ¶ 22, Ex. J). The Court held another case management conference on June 6, 2024, and despite the assurances from Plaintiff’s counsel that Mr. Faintich had already been served, there continued to be no proof of service on the Court’s record, and the case management conference had to be continued again to August 6, 2024. (Pitts Decl. at ¶ 23).  

According to the Court’s records, a proof of service regarding service of the complaint to Mr. Faintich was not filed until June 24, 2024.  Mr. Faintich had not yet answered the complaint by the time of the August 6, 2024 case management conference, causing additional delay in the Court setting a trial date.  (Pitts Decl. ¶ 24).  

This hearing is on the District’s motion for monetary, evidentiary and/or terminating sanctions.  The District argues terminating sanctions are warranted given Plaintiff’s willful failure to comply with two prior court orders.  In the alternative, the District asks the Court to issue an evidentiary sanction prohibiting Plaintiff from using or referring to any of the documents demanded by the document requests that Plaintiff refused to produce to the District.  Finally, the District seeks monetary sanctions in the amount of $3,770 for Plaintiff’s failure to comply with the Court’s orders.  There was no opposition filed as of the posting of this tentative ruling.         

LEGAL STANDARD 

Code Civ. Proc. § 2023.030 permits courts to impose sanctions against anyone engaging in conduct that constitutes a misuse of the discovery process.  Section 2023.010 provides a non-exhaustive list of conduct that is considered misuse of the discovery process, including as relevant here, failing to respond or submit to an authorized method of discovery and disobeying a court order to provide discovery. (Code Civ. Proc. § 2023.010(d), (g).) 

“The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.  The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.”  (Code Civ. Proc., § 2023.030(b).)  “The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing¿designated matters in evidence.”  (Code Civ. Proc., § 2023.030(c).) 

Further, Code Civ. Proc. § 2023.030 subdivision (d) gives courts the authority to issue a terminating sanction by one of four following orders: (1) an order striking out the pleadings or parts of the pleadings of any party engaging in misuse of the discovery process; (2) an order staying further proceedings until an order for discovery is obeyed; (3) an order dismissing the action, or any part of the action, of that party; or (4) an order rendering a default judgment against that party.  

In determining whether to impose terminating sanctions, trial courts must consider the totality of the circumstances, including whether the actions were willful; the detriment to the propounding party; and the number of informal and formal attempts to obtain the discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) 

“Generally, ‘[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.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390¿(citation omitted).) 

When considering whether to impose terminating sanctions, the Court should consider the following factors: “(1) the time which has elapsed since [the discovery requests] were served, (2) whether the party served was previously given a voluntary extension of time,¿(3) the number of interrogatories propounded, (4) whether the unanswered questions sought information which was difficult to obtain, (5) whether the answers supplied were evasive and incomplete, (6) the number of questions which remain unanswered, (7) whether the questions which remain unanswered are material to a particular claim or defense, (8) whether the answering party has acted in good faith, and with reasonable diligence, (9) the existence of prior orders compelling discovery and the answering party’s response thereto, (10) whether the party was unable to comply with the previous order of the court, (11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and (12) whether a sanction short of dismissal or default would be appropriate to the dereliction.” 

(Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.) 

The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293; Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928–929.)  The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should “attempt[] to tailor the sanction to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) 

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  “Discovery 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.” (Laguna Auto Body v. Farmers Ins. Exchange, 231 Cal.App.3d at p. 487.)  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.) 

DISCUSSION 

The District argues that terminating sanctions are warranted for Plaintiff’s willful failure to comply with the Court’s prior orders.  The Court agrees.   

Generally, “[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.)  Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244–1246.)  In addition, terminating sanctions are appropriate if a party’s failure to obey a court order actually prejudiced the opposing party.  (Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669-670.) 

Here, the Court first provided Plaintiff an opportunity to correct his failure to respond to the District’s document requests by ordering the parties to meet and confer regarding the overdue discovery.  Plaintiff refused to do so.  (Pitts Decl. ¶¶ 10, 11, Ex. E). When the District moved to compel, Plaintiff finally provided some responses, but Plaintiff’s responses remained deficient.  

On July 1, 2024, the Court issued an order requiring Plaintiff to supplement his discovery responses, produce all responsive documents, submit to a deposition, and pay $750 in monetary sanctions.  Plaintiff did none of that.  (Pitts Decl. ¶¶ 15-20, Exs. G, H).  None of Plaintiff’s responses to the document requests have been supplemented; Plaintiff failed to appear for deposition on July 24, 2024, and Plaintiff has not paid the $750 in monetary sanctions ordered by this Court.  Despite orders issued by this Court, the District still does not have Code-compliant responses nor all of the responsive documents in Plaintiff’s custody, possession or control. 

Plaintiff has offered no reason or justification for his failure to comply.  He knew of the Court’s orders, and indeed, was prompted by the District’s counsel to comply with them.  Nonetheless, he refused to comply, despite the District’s many informal attempts to encourage Plaintiff to comply.  On these facts, the Court can only conclude Plaintiff’s disobedience of this Court’s orders is willful.   

Moreover, less severe sanctions have had no effect on Plaintiff.  The Court imposed monetary sanctions on Plaintiff which not only failed to motivate him to comply, but he willfully refused to pay.  It is clear to the Court that less severe sanctions will not motivate Plaintiff to comply with the discovery rules.   

In addition, Defendant is prejudiced by Plaintiff’s failure to submit to discovery.  The District’s document requests seek clearly relevant documents, supporting or negating Plaintiff’s claims.  Because Plaintiff has never provided Code-compliant responses, the District does not know what documents Plaintiff has, does not have, or is withholding from production. (Pitts Decl. ¶ 16).  Nor has the District been able to take Plaintiff’s deposition.   

On these facts, the Court concludes that terminating sanctions are warranted.  Given the Court has issued the most severe sanction of termination, it declines to also award monetary sanctions.   

CONCLUSION 

Based on the foregoing, the Court GRANTS the Beverly Hills Unified School District’s motion for terminating sanctions.  The Court dismisses the complaint against the District with prejudice.   

 

IT IS SO ORDERED. 

 

DATED: September 12, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court