Judge: Frank M. Tavelman, Case: 21BBCV00741, Date: 2023-09-01 Tentative Ruling

Case Number: 21BBCV00741    Hearing Date: September 1, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR TERMINATING SANCTIONS

ALLEGATIONS: 

On August 19, 2021, Jorge Martinez (“Plaintiff”) brought this action against Andres M. Lara (“Defendant”) seeking damages in connection with Plaintiff’s alleged real estate investment. On January 28, 2022, Plaintiff filed his First Amended Complaint containing three causes of action for (1) Breach of Contract, (2) Intentional Misrepresentation, and (3) Negligent Misrepresentation.

On September 2, 2022, the Court granted the motion to be relieved of Plaintiff’s counsel. Plaintiff is now in pro per.

ANALYSIS: 

I.                    LEGAL STANDARD 

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (C.C.P., §§ 2030.290(c), 2023.010(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 495.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a “drastic measure which should be employed with caution.” (Deyo supra, 84 Cal. App. 3d at 793.) “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.) While the court has discretion to impose terminating sanctions, these 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.” (Deyo supra, at 793.) “[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.” (Id.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal. App. 3d 57, 64.)

II.                 MERITS

On May 26, 2023, hearing was held on Defendant’s motion to compel discovery responses. Plaintiff appeared in pro per and informed the Court that his failure to respond to these discovery demands was the result of his residing in Mexico and his failure to check the P.O. box listed as his address with the Court. The Court admonished Plaintiff for his negligence and entered an order compelling his response. The Court also directed Plaintiff to provide alternative contact information to Defendant’s counsel. Defendant’s counsel now states that Plaintiff never provided responses to the discovery demands and never provided the alternative contact information. (Thomulka Decl.)

Despite Plaintiff’s clear neglect of his case, the Court does not find Plaintiff’s failure to comply with the May 26, 2023 order warrants the drastic remedy of terminating sanctions. 

“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. Hachman (2000) 77 Cal.App.4th 1225, 1246.)

Defendant is certainly entitled to receive responses to the discovery that she has propounded, and Plaintiff is subject to appropriate (and potentially escalating) sanctions for the failure to comply with his obligations under the Civil Discovery Act and court orders, but at this time the Court cannot make a determination that the Plaintiff’s failures to comply were willful. Defendant’s motion contains no substantive argument as to the willful nature of Plaintiff’s noncompliance. It is clear to the Court that Plaintiffs failure to respond results from a pattern of neglect in retrieving his mail from his P.O. box and his failure to provide alternative contact methods to Defendant’s counsel. While this behavior is certainly ripe for monetary sanctions, it does not constitute the willful refusal to comply that justifies terminating sanctions.

Further, Defendant’s motion makes no argument as to a detriment suffered which cannot be offset by less severe sanctions. It appears to the Court that monetary sanctions would be appropriate to offset the cost of Defendant’s actions in attempting to obtain discovery.

Last, the Court finds the number of informal attempts to resolve discovery does not warrant terminating sanctions. Defendant does attach two subsequent meet and confer letters sent June 28, 2023 and July 10, 2023 to Defendant’s P.O. box. (Thomulka Decl. Exhs. 2, 3.) Plaintiff has not responded to either of these letters, presumably because he has not checked his P.O. box. While the Court does not condone Plaintiff’s negligence in maintaining his case, the fact remains that no substantive meet and confer has occurred regarding the actual discovery demands.

Accordingly, the Court denies the motion for terminating sanctions. The Court is sensitive to the fact that this is Plaintiff’s case to prosecute and that his failure to reply to discovery does inconvenience Defendant. However, dismissal for failure to prosecute and the granting of terminating sanctions are two separate legal remedies which require different showings from a defendant. Here, Defendant has shown Plaintiff failed to comply with the May 26, 2023 order, but Defendant has not shown that this failure was willful or has produced a detriment which cannot be resolved via lesser sanctions.

Sanctions

In the alternative to terminating sanctions, Defendant requests an order be entered compelling Plaintiff’s response and granting an additional $1,360 in monetary sanctions. This amount is reflective of the efforts of Defendant’s counsel to resolve the discovery matter and to bring this motion. Defendant’s counsel states a total of four hours was spent on these efforts at an hourly rate of $325. (Thomulka Decl.) The requested amount also includes the $60 filing fee. (Id.)

The Court finds these requests to be reasonable. As such, the Court awards sanctions to Defendant in the amount of $1,360.  Furthermore, the Court can consider evidentiary sanctions should the monetary sanctions be unpersuasive with Plaintiff.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Andres M. Lara’s Motion for Terminating Sanctions came on regularly for hearing on September 1, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

DEFENDANT’S MOTION FOR TERMINATING SANCTIONS IS DENIED.

PLAINTIFF IS ORDERED TO COMPLY WITH THIS COURT’S MAY 26, 2023 ORDER COMPELLING HE RESPOND TO DISCOVERY AND PAY $1,035 IN SANCTIONS TO DEFENDANT.

THE COURT AWARDS FURTHER MONETARY SANCTIONS IN THE AMOUNT $1,360 TO THE DEFENDANT.

ALL SANCTIONS SHALL BE PAID WITHIN 30 DAYS.

DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  September 1, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles