Judge Jill Feeney, Case Number: 19STCV09195, Date: 2023-07-20 Tentative Ruling

This is an action for breach of contract, fraud, rescission, and conversion. Plaintiff Brian Neman alleges that in April 2017, he entered into a written agreement with Defendants Farhad and Elham Yaghoubi to buy a commercial building for $1,000,000. (FAC ¶9.) Although Plaintiff delivered $1,000,000, Defendants failed to deliver the property by the promised date and refused to return the funds according to the agreement. (FAC ¶¶10-14.)

“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.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendant’s Answer and subsequently granting default judgment) 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, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

Cross-Complainants’ counsel testifies that VIP’s counsel has not responded to emails since June 2023 and has not responded to phone calls in even longer. (Kohrs Decl., ¶3.) The Court granted Cross-Complainants’ motion to compel responses to form interrogatories on September 26, 2023. (Id., ¶2.) To date, VIP has not served responses or contacted Cross-Complainants’ counsel. (Id.)

On reply, Cross-Complainants’ counsel alleges that it served discovery requests on VIP in July 2023 and VIP’s responses to form interrogatories were due by November 2, 2023 after the Court granted their motion to compel discovery. (Kohrs reply Decl., ¶¶1-3, Exhs. 1-2.) VIP did not serve responses until January 2024. (Id.) Cross-Complainants argue that terminating sanctions are still warranted here because they were forced to proceed with mediation, trial preparation, and other matters without discovery from VIP.

The Court finds that terminating sanctions are not appropriate here because the evidence does not show that less severe sanctions would not produce compliance with discovery rules. VIP is now participating in discovery, paid the outstanding sanctions, and has opposed this motion. The motion for terminating sanctions is denied.

Sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., section 2023.030, subd. (a).) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., section 2023.010, subd. (d).)

Here, because VIP failed to obey the October 2023 order compelling its responses to form interrogatories and filed the outstanding responses late, Cross-Complainants’ request for sanctions is granted. Cross-Complainants’ request for $2,596 in sanctions is granted.

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” When a party seeks relieve “no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. section 473) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Here, default was entered against Guerrero on July 31, 2023. Guerrero filed this motion on November 29, 2023, within the six-month deadline of the Code of Civ. Proc. section 473(b). Guerrero’s counsel testifies that he is also representing Cross-Defendant VIP and offered to file an Answer to the Cross-Complaint on behalf of Guerrero. (Gomez Decl., ¶3.) Guerrero’s counsel did not properly calendar the response date and never filed the answer. (Id.) Because Guerrero failed to answer the Cross-Complaint due to his attorney’s mistake, the motion to set aside default entered against Guerrero is granted.