Judge Jill Feeney, Case 20STCV10132 2022-09-29 Tentative Ruling

Plaintiff argues that terminating sanctions are not appropriate because Defendant cannot show that Plaintiff willfully disobeyed the Court’s orders. Rather, the initial delays with discovery responses were caused by delays with Plaintiff’s medical providers. Plaintiff also argues that his counsel was unable to respond to Defendant’s discovery requests in July 2022 because he began a three-week trial in the same time period. Plaintiff alleges that he served discovery responses on August 11, 2022.

If a party engages in the misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., § 2023.030.) Code of Civil Procedure section 2023.010 provides, in relevant part, that “[m]isuses of the discovery process include, but are not limited to, the following: … (d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery.”

“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].) “Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.)

Defendant seeks terminating sanctions against Plaintiff. Defendant alleges that Plaintiff violated the Court’s July 5, 2022 and July 8, 2022 orders compelling Defendants to serve responses to Form Interrogatories and Special Interrogatories. According to the July 5 and 8, 2022 orders, Plaintiff and his counsel were ordered to pay sanctions. As of the date Defendant filed his motion, Plaintiff had not served responses or paid sanctions. (Pluma Decl., ¶15.)

Plaintiff argues that he did not willfully disobey the Court’s July 2022 orders. Plaintiff claims that the initial delay in responding to Defendant’s discovery requests was caused by delays with Plaintiff’s medical providers. (Bryant Decl., ¶3.) Although Plaintiff requested medical records and repeatedly followed up, his medical providers did not provide medical and billing records until June 16, 2022. (Id., ¶¶3-6.) After the Court ordered Plaintiff to serve responses to Defendant’s form interrogatories and special interrogatories, Plaintiff’s counsel became unavailable due to a three-week trial that began on July 5, 2022. (Id., ¶¶7-8.) On August 11, 2022, Plaintiff served responses to Defendant’s form interrogatories and special interrogatories and paid sanctions. (Id., ¶¶10-12.) Plaintiff also produced documents in response to Defendant’s production requests. (Id., ¶13.)”

The evidence shows that Plaintiff did not willfully disobey the Court’s July 2022 orders and Plaintiff’s violation was not preceded by a history of abuse. Plaintiff’s counsel’s declaration demonstrates that counsel failed to respond to Defendant’s discovery responses because he was engaged in a lengthy trial. Additionally, initial delays in responding to Defendant’s requests for production were caused by delays with Plaintiff’s medical providers. Plaintiff does not provide an explanation as to why written discovery was delayed. There is also no explanation for Plaintiff’s failure to communicate with Defendant after the Court’s July 2022 orders. Nevertheless, that Plaintiff eventually did respond in full to Defendant’s discovery requests suggests the failure to timely respond was not willful. Plaintiff’s counsel’s declaration also shows Plaintiff actively participated in discovery by communicating with Defendant’s counsel about his medical provider’s delays. Thus, Defendant’s motion for terminating sanctions is denied.

The Court finds, however, that Plaintiff has misused the discovery process by failing to timely respond to Defendant’s discovery requests in compliance with the Court’s July 2022 orders compelling Plaintiff’s responses. The Court grants Defendant’s request for sanctions in the amount of $1,250.