Judge: Elaine Lu, Case: 21STCV28718, Date: 2023-08-23 Tentative Ruling

Case Number: 21STCV28718    Hearing Date: October 23, 2023    Dept: 26

Defendants Los Angeles Community College District and Los Angeles Southwest College’s motion to compel Plaintiff Daniel Ortega’s initial responses to Request for Production of Documents (Set Two); Form Interrogatories – Employment (Set Two); Special Interrogatories (Set Two); Supplemental Interrogatory (Set One); and Supplemental Request for Production of Documents (Set One) is GRANTED.  All objections are deemed waived.

Plaintiff Daniel Ortega is ordered to serve verified, code compliant responses, without objections, to Form Interrogatories – Employment (Set Two); Special Interrogatories (Set Two); and Supplemental Interrogatory (Set One) within 2 days of notice of this order.

Plaintiff Daniel Ortega is ordered to serve verified, code compliant responses, without objections, to Request for Production of Documents (Set Two) and Supplemental Request for Production of Documents (Set One) within 1 day and to produce all responsive documents within 2 days of notice of this order.

Plaintiff Daniel Ortega and his attorney of record – Numeriano Paulino Inumerable – jointly and severally, are ordered to pay sanctions to Defendants Los Angeles Community College District and Los Angeles Southwest College, by and through counsel of record, in the amount of $2,062.50, within 30 days of notice of this order.

Defendants’ further request for terminating sanctions is DENIED. 

“The 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.’”  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 [quoting 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, supra, 223 Cal.App.4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”  (Ibid. [citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn.4, [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

However, nonmonetary sanctions may be warranted absent a prior order compelling discovery where such an order would be futile.  (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36 superseded by statute on other grounds.)  In Do It Urself Moving & Storage, Inc., on the eve of trial the parties stipulated to continue trial so that the plaintiff could conduct an audit of the plaintiff’s and defendant’s records in order to prove liability.  (Id. at pp.31-32.)  Pursuant to the stipulation, the plaintiff was to provide the audit to the defendant.  (Id. at p.32.)  Well past the stipulated deadline to provide the audit report to the defendant and following numerous unsuccessful requests for the audit report, the defendant moved to exclude the evidence from trial which the trial court granted.  (Id. at pp.32-33.)  The Court of Appeal concluded that the imposing of evidentiary sanctions absent a prior order to compel the audit report was proper on the basis  that “it is conceded that plaintiffs are unable to provide the promised items of discovery. Under the circumstances of this case, a warning to plaintiffs, in the form of a formal order to comply, would have been futile.”  (Id. at p.36.)

Similarly, in Vallbona v. Springer (1996) 43 Cal.App.4th 1525, it was found that a motion to compel response would have been futile because the defendants claimed that the requested  documents had been stolen, and thus, when the defendants attempted to introduce the documents at trial, a prior order compelling discovery was not required before imposing evidence and issue sanctions.  (Id. at pp.1545-146.) 

In sum, “[d]ecisions such as Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1544–1549, 51 Cal.Rptr.2d 311 (Vallbona ), and Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35, (Do It Urself ) have held that a violation of a discovery order is not a prerequisite to issue and evidentiary sanctions when the offending party has engaged in a pattern of willful discovery abuse that causes the unavailability of evidence.”  (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214–1215.) 

Here, Plaintiff has repeatedly failed to timely respond to discovery requests.  (See e.g., Minute Order 6/2/23; Minute Order 9/28/23.)  However, even presuming that the failure to timely respond or meet and confer was willful, terminating sanctions would be extreme and unwarranted under the circumstances. “Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.”  (Karlsson, supra, 140 Cal.App.4th at p.1217.)

As noted above, in cases involving the imposition of nonmonetary sanctions without a prior court order compelling compliance, motions to compel were futile, and the discovery abuses caused the evidence to be unavailable.  Moreover, even in those circumstances, the court did not impose terminating sanctions but rather only issue or evidentiary sanctions.

Here, there is no indication that a motion to compel would be necessarily futile.  In fact, Plaintiff has previously served the relevant responses immediately before the hearing.  (See e.g., Minute Order 6/2/23; Minute Order 9/28/23.)  Moreover, Defendants have failed to show the unavailability of evidence.  Thus, Defendants fail to show any basis for terminating sanctions.  The Court finds that the imposition of the monetary sanctions above suffices.

Defendants to give notice to all parties.