Judge: Gail Killefer, Case: 19STCV05943, Date: 2023-10-03 Tentative Ruling

Case Number: 19STCV05943    Hearing Date: October 3, 2023    Dept: 37

HEARING DATE:                 Tuesday, October 03, 2023

CASE NUMBER:                   19STCV05943

CASE NAME:                        Darryn Hammond, et al. v. Arena Football Legue, LLC, et al.

MOVING PARTY:                 Defendant Tennessee Arena Football League, LLC

OPPOSING PARTY:             Plaintiffs Robin Hammond, Sydney Hammond, Darryl Todd Hammond, II, and Darryn Hammond

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motions for Terminating Sanctions

OPPOSITION:                        19 September 2023

REPLY:                                  26 September 2023

TENTATIVE:                         Defendant TAF’s motions for terminating sanctions are denied. Defendant TAF’s motion for monetary sanctions in the amount of $2,616.00 against Plaintiff Robin Hammon is granted and denied as to the rest of the Plaintiffs.

Background

Plaintiffs Robin Hammond, individually and as the parent of Sydney Hammond and Darryl Todd Hammond, II, and as the successor in interest to Darryl Hammond, deceased and Darryn Hammond (collectively “Plaintiffs”) sue Defendants Arena Football League, LLC; Arena Football One, LLC; Tennessee Arena Football, LLC; Walt Disney Motion Pictures Group, Inc.; Walt Disney Pictures Production, LLC; Walt Disney Pictures; Paramount Pictures Corporation; Columbia Pictures Industries, Inc.; and Columbia Pictures Hybrid Productions, Inc. (collectively “Defendants”).  Plaintiffs allege the late Darryl Hammond suffered from head trauma caused by repetitive concussive head impacts while playing AFL football games and/or practices and while filming “The Longest Yard” and “Invincible.” 

On February 19, 2019, Plaintiffs commenced this action against Defendants. 

On June 24, 2020, pursuant to the parties’ joint stipulation, the Court deemed Plaintiff’s Second Amended Complaint as the operative complaint. The SAC alleges the following causes of action: 

1)     Negligence 

2)     Negligent Misrepresentation 

3)     Fraud 

4)     Fraudulent Misrepresentation by Concealment 

5)     Fraudulent Misrepresentation by Nondisclosure 

6)     Wrongful Death 

7)     Survival 

8)     Loss of Consortium 

On September 15, 2020, Defendants/Cross-Complainants Walt Disney Motion Pictures Group, Inc.; Walt Disney Pictures Production, LLC; and Walt Disney Pictures (collectively “Disney”) filed a cross-complaint against Cross-Defendant Estate of Darryl Hammond, deceased, by and through its successor in interest, Robin Hammond. On September 10, 2021, dismissal of the cross-complaint with prejudice was entered pursuant to Disney’s request. On August 30, 2021, Plaintiffs and Disney reached a settlement.

On September 25, 2023, a settlement was reached between Plaintiffs and d Defendants Paramount Pictures Corp., Columbia Pictures Industries, Inc, and Columbia Pictures Hybrid Productions, Inc.

On January 31, 2022, Plaintiffs’ counsel’s motion to be relieved as counsel was granted.

On May 3, 2023, Defendant Tennessee Areena Football, LLC (“TAF”) filed four separate Motions for Terminating Sanctions against Plaintiffs Robin Hammond, Darryn Hammond, Sydney Hammond, and Darryl T. Hammond, II. On May 12, 2023, Plaintiffs filed Substitution of Attorney forms, substituting attorney Ashley Valenzuela for Robin Hammond, Darryn Hammond, and Sydney Hammond.

The sanctions motions came before the court on August 21, 2023.  The court continued the hearing to allow Plaintiffs’ counsel the opportunity to comply with prior court orders and oppose the motions. Plaintiffs filed opposing papers on September 19, 2023, and further responses to the discovery at issue on September 20, 2023. TAF filed reply briefs on September 26, 2023.

Discussion

I.         Legal Standard

CCP § 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP § 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order. The Discovery Act defines misuse of discovery as including (1) a failure to respond or to submit to an authorized method of discovery (CCP, § 2023.010(d)) and (2) disobedience to a court order to provide discovery (CCP § 2023.010(g)).¿¿¿ 

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Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented.¿ (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210.)¿¿¿¿ 

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In addition, an order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance.¿ (Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1021.)¿ Accordingly, there are grounds for terminating sanctions when a party fails to comply with discovery and fails to comply with court orders regarding discovery.¿¿ 

II.        Motions for Terminating Sanctions

Defendant TAF brings four Motions for terminating sanctions against Sanctions against Plaintiffs Robin Hammond, Darryn Hammond, Sydney Hammond, and Darryl T. Hammond, II for (1) failing to comply with the November 2, 2022 Order; (2) failing to appear at court and obtain counsel in this matter; (3) failing to comply with the court order compelling discovery responses; and (4) violating the court’s most recent order to meet and confer prior to filing a case management statement.

As a terminating sanction, Defendant TAF is requesting that Plaintiffs’ SAC be dismissed as to TAF. Defendant also seeks: (1) $2,616.00, in monetary sanctions against Plaintiff Sydney Hammon; (2) $2,776.00 in monetary sanctions against Plaintiff Darryl Todd Hammond; (3) $2,488.00 in monetary sanctions against Plaintiff Darryn Hammond; and (4) $5,569.00 against Plaintiff Robin Hammond.

A.        Failing to Comply with the Discovery Process and Failure to Comply with the November 2, 2022, Order

On July 15, 2022, and July 18, 2022, TAF filed two Motions to Compel Plaintiffs to provide further responses to TAF’s Special Interrogatories (“SROGS”), Set 1 and Set 2. On November 2, 2022, the court ordered Plaintiffs to provide further verified responses, without objection, to both sets of written discovery by January 13, 2022. (Henning Decl. ¶ 4, Ex. B.) Defendant TAF asserts that Plaintiffs willfully failed to comply with the court’s November 2, 2022, order.

Plaintiffs’ opposition argues that the Motion is moot because the Plaintiffs have now provided verified responses to SROGS Set One and Two. Plaintiffs assert that they provided their previous counsel with numerous original copies, but have never gotten the original copies back, including handwritten notes and documents from the Decedent. Plaintiffs assert that they do not currently hold any documents that are relevant to Defendant TAF’s discovery request. Plaintiffs assert that they have provided all the documents they could find that were responsive to the discovery request and that Defendants failed to present evidence that plaintiffs are in possession or in control of such documents.

Plaintiffs admit that their former counsel may be in possession of responsive documents. In responding to SROGS, Plaintiffs were required to identify the person and location of the person who may have knowledge of any discoverable matter, “as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (CCP, § 2017.010.) Plaintiffs ignored their discovery obligations, however, and finally provided responses on September 30, 2023, almost a year after the request for additional responses was made. Moreover, Plaintiffs discovery responses remain incomplete.

For example, on SROG No. 69, Plaintiffs responded as follows:

Plaintiff does not hold in her possession any additional documents relevant to this question. Subject to and without waiver of the foregoing objections, please see documents Bates-labeled P-00001 through P-00005, P-00010 through P-00053, and P-00131 through P-00941, as well as all documents produced by Defendant Tennessee Arena Football, LLC. Plaintiffs are continuing to search for potentially responsive documents and will produce any additional responsive documents if located.

(Sep. Stat. SROGS, Set 1 # 69.) Consequently, the court agrees with Defendant TAF that Plaintiffs have not yet fully complied with the November 2, 2023, court order as Plaintiff’s remain incomplete despite having more than a year to comply.

Plaintiffs’ objection states that Plaintiff Robin Hammond, individually and on behalf of her three children, acted pro se and did the best she could given the fact that she was in a different state and lacked any substantive or procedural background, and for fifteen (15) months searched “endlessly for proper representation, in addition to doing the best to comply with Defendant’s requests.” (Opp. at p. 2:10-12.) In fact, three of Plaintiff Robin’s children reached the age of majority and did not have legal counsel. Absent from the Plaintiffs’ opposition are declarations from Robin Hammond attesting that she was diligent in searching for an attorney and attempting to comply with Defendant TAF’s discovery requests.

            B.        Failure to Appear in Court and Obtain Counsel

Plaintiff originally retained Rohnda H. Willis to represent them in this matter, but she was relieved as counsel on January 31, 2022. Plaintiff did not obtain new counsel until May 12, 2023. TAF asserts that until they filed the Motions for Terminating Sanctions, Plaintiff failed to obtain new counsel, and Plaintiff Robin Hammond, as the guardian ad litem, repeatedly refused to provide the name of the new counsel while the other Plaintiffs failed to appear in court.

Defendant TAF asserts that this has caused delays in the action.

C.        Failure to Meet and Confer

Defendants also assert that Plaintiffs failed to comply with the court rules, and failure to comply with a court order to meet and confer before the May 4, 2023, Case Management Conference. (Henning Decl. ¶ 8.)

Defense counsel asserts it tried to reach out to Plaintiff Robin Hammond, the only contact they had, to attempt to meet and confer for the May 12, 2023, case management conference on April 7, 2023, and April 11, 2023. (Henning Decl. ¶ 9.) Defense counsel asserts that Robin Hammond willfully ignored Defendant’s the meet and confer efforts. Furthermore, prior to filing the Motions for Terminating Sanctions, Defense counsel attempted to meet and confer with Plaintiffs, but was again ignored. (Hemming Decl. ¶ 5.)

D.        Plaintiffs Failed to Comply with Their Discovery Obligations

The fact that Plaintiff Robin Hammond and her children were without representation does not excuse her and the other Plaintiffs’ failure to comply with their discovery obligations. “A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.’” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.) Indeed, “‘the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.’” [Citation.]” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

As the Plaintiffs’ supplemental responses to SROGS Set 1 and 2 remain incomplete, the court agrees that sanctions are warranted. However, the court finds is not persuaded that there are no other alternatives than to dismiss Plaintiffs’ actions.

Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that ‘are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.’ [Citation.]  In other words, discovery sanctions exist ‘not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court.’ [Citation].  

¿ 

(Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183 [italics original] [internal citation and quotation marks omitted].) 

In Wilson v. Jefferson (1985) 163 Cal.App.3d 952, the appellate court overturned the trial court’s decision to strike the defendant’s answer and enter default against the defendant for failing to comply with an order to produce documents. (Id. at p. 958.) The appellate court reasoned that:  

‘The penalty 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 [so that a] sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.’

(Id.)  

To dismiss Plaintiffs’ action would place Defendant TAF in a better position than it would have had if the discovery sought been obtained. Defendant TAF also fails to explain how the proposed terminating sanctions are tailored to Plaintiff’s discovery abuse. The court denies the Defendant’s request Plaintiffs’ SAC against TAF be dismissed in its entirety.

As to the Defendants’ request for monetary sanctions, the court finds that because the minor Plaintiffs were without an attorney, it would be unfair to impose monetary sanctions against them.

However, the court finds that sanctions are warranted against Plaintiff Robin Hammond in the amount of $2,616.00 for her willful failure to comply with the November 2, 2022, order, failure to obtain counsel in a timely manner, failure to comply with a court order compelling discovery, and violating the court’s most recent order to meet and confer prior to filing a case management statement.

Lastly, the court denies Plaintiffs’ request for sanctions.

Conclusion

Defendant TAF’s request for terminating sanctions is denied. Defendant TAF’s request for monetary sanctions in the amount of $2,616.00 against Plaintiff Robin Hammond is granted and denied as to the rest of the Plaintiffs.

Dated: October __, 2023                                _______________________________

                                                                        Gail Killefer

                                                                        Judge, Los Angeles Superior Court