Judge: Glenda Sanders, Case: 2019-01107756, Date: 2022-11-03 Tentative Ruling

Plaintiff David Lawson seeks evidence, issue and terminating sanctions against Defendant Executive Maintenance, Inc. (Defendant) and monetary sanctions against Defendant and its counsel of record.

Terminating sanctions may be imposed as a sanction for discovery abuses only after the party has disobeyed a prior court order compelling compliance with a discovery request, that party has had the opportunity to be heard regarding the disobedience, and the party’s failure to obey the court order actually prejudiced the opposing party. (J.W. v. Watchtower Bible & Tract Soc’y of New York, Inc. (2018) 29 Cal.App.5th 1142, 1166-1171; Moofly Prods., LLC v. Favila (2020) 46 Cal.App.5th 1, 11; Cal. Judges Benchbook (2021) Civ. Proc. Discovery § 6.18, citing.) Because terminating sanctions are drastic, they should be used sparingly and should generally not be imposed unless less severe sanctions have already been imposed and proved unsuccessful, or the record clearly shows less severe sanctions would be ineffective. (Lopez v. Watchtower Bible & Tract Soc’y of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)

Factors that may be relevant in deciding whether and which sanctions to impose for disobedience to discovery orders include: the time that has elapsed since the discovery was served; whether the party received extensions of time to answer or respond; the number of discovery requests and the burden of replying; the importance of the information sought; whether the answering party acted in good faith and with reasonable diligence—i.e., whether he or she was aware of the duty to furnish the requested information and had the ability to do so; whether the answers supplied were evasive or incomplete; the number of questions remaining unanswered; whether the unanswered questions sought information that was difficult to obtain; the existence of prior court orders compelling discovery and the answering party's compliance with them (see Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 Cal.App.4th 373, 379); whether the party was unable to comply with previous orders re discovery; whether an order allowing more time to respond would enable the responding party to supply the necessary information; and whether some sanction short of dismissal or default would be appropriate to the dereliction. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796.)

Here, the consideration of these factors support the imposition of terminating sanctions.

It is undisputed that on February 4, 2021, this Court granted Plaintiff’s motion to compel responses to Special Interrogatories (SI), Set One, from Defendant and ordered Defendant to provide “complete and accurate” responses within 20 days and to pay monetary sanctions in the total amount of $1,260 within 30 days. ROA 60, 2/4/21 Order; see also, ROA 58, 2/4/21 Minute Order.

It is undisputed that Defendant did not provide supplemental responses nor pay the monetary sanctions as ordered, forcing Plaintiff to file a Motion to compel compliance with the 2/4/21 Order, to impose issue sanctions precluding Defendant from presenting testimony from any putative class member that may support Defendant in any motions or trial, and to award monetary sanctions against Defendant, which the Court granted on July 8, 2021. ROA 132, 7/23/21 Order; see also, ROA 124, 7/8/21 Minute Order.

The Court expressly found Defendant “has willfully failed to comply with the Court’s 2/4/2021 Order” and imposed issue sanctions that precluded Defendant from presenting any testimony from any putative class member that may support Defendant in any motions or trial. Ibid.

Additionally, Plaintiff filed two more Motions to compel responses to the SI, Set Two and Requests for Production of Documents (RPD), Set One. ROA 124, 7/8/2022 Minute Order. The Court ordered Defendant to provide responses, without objections, to RPD, Set One and SI, Set Two, to produce copies of responsive documents to RPD Nos. 1-5 with redactions of all personally identifying information on any documents produced, and to make available for inspection and copying all responsive documents to RPD Nos. 6-19 within 30 days, and awarded monetary sanctions against Defendant. ROA 132, 7/23/21 Order; see also, ROA 124, 7/8/21 Minute Order.

It is undisputed that although Defendant eventually paid the monetary sanctions, Defendant failed to provide full and complete responses to SI, Set One, or produce any responsive documents to RPD, Set One, in violation of the Court’s 2/4/21 and 7/8/21 Orders, resulting in a Motion for terminating and monetary sanctions for violations of the prior discovery orders. ROA 202, 1/20/22 Minute Order. ROA 202, 1/20/22 Minute Order. On January 20, 2022, the Court granted Plaintiff’s Motion and ordered Defendant to make all responsive documents available for inspection and copying within 5 court days. The Court also advised “[s]hould Defendant fail to comply with this Order, by failing to produce responsive documents, Plaintiff may forthwith request an Order striking Defendant’s Answer.” ROA 202, 1/20/22 Minute Order, bold and underline in the original. The Court ordered Defendant to pay monetary sanctions in the amount of $2,212.50. ROA 202, 1/20/22 Minute Order.

Further, Defendant repeatedly represented to Plaintiff and this Court that responses were forthcoming; yet, nothing was provided. See e.g., ROA 73, 3/19/21 Minute Order; ROA 155, 8/27/22 Minute Order.

It is undisputed that, once again, Defendant failed to comply with the Court’s 1/20/22 Minute Order, resulting in the present Motion for sanctions. ROA 236, Delp Decl., ¶¶28-31. Defendant did not dispute any of the above facts but indicated that documents would be produced (ROA 244, Opp., p. 2) and Defendant did produce a large volume of documents that appeared to be personnel records and other documents in response to RPD Set One. ROA 248, Lin Decl., ¶21. The Court continued the hearing to give Plaintiff sufficient time to determine if Defendant had fully complied with the Court’s prior orders, and ordered the parties to meet and confer within 30 days and file a Joint Supplemental Brief identifying any outstanding issues. ROA 261, 9/8/22 Minute Order.

Despite being ordered to meet and confer and having ample time to do so, Defendant, yet again, refused to comply with the Court’s 1/20/22 Minute Order and did not respond to Plaintiff’s attempts to meet and confer or prepare the Joint Supplemental Brief in compliance with the Court’s 1/20/22 Minute Order. ROA 267, Supp. Brief. Further, Plaintiff has confirmed that Defendant’s most recent production still fails to comply with the Court’s prior orders and that Defendant has not provided verified responses to the SI, Set Two or RPD, Set One. ROA 267, Supp. Brief. In sum, after over 1 ½ years, 5 motions, the imposition of issue sanctions and monetary sanctions, and repeated representations that it would comply, Defendant has willfully failed to fully and completely comply with the Court’s 2/4/2021, 7/8/2022, 1/20/2022 and 9/8/2022 orders.

Defendant’s willful refusal to comply has resulted in prejudice to Plaintiff. This is a wage and hour putative class action case; yet, Defendant has repeatedly refused to provide information and documents regarding the Class that is typical is such actions and to which Plaintiff is entitled. This information is in Defendant’s exclusive possession. As such, Defendant has thwarted Plaintiff’s ability to obtain relevant and necessary information regarding the size and contact information for the class and to develop Plaintiff’s case, resulting in a waste of time and resources, and hindering his ability to adequately prepare for trial.

Accordingly, the Court GRANTS Plaintiff’s motion for terminating sanctions and orders that Defendant’s Answer be stricken.

Pursuant to CCP §§ 2023.030(a), 2030.290(a) and 2031.310(i), the Court GRANTS monetary sanctions in the amount of $2,520 for the attorney fees and costs incurred in connection with this Motion. Defendant’s actions were not substantially justified and there are no circumstances that would make the imposition of monetary sanctions unjust. Defendant is ordered to pay the monetary sanctions within 30 days.

The Court declines to impose further monetary sanctions under CCP §§ 177.5 or 1097.

The status conference is continued to February 3, 2023 at 9:00 a.m.  Plaintiff is ordered to file a status conference report not later than January 27, 2023.

Plaintiff is ordered to give notice.