Department 30, Spring Street Courthouse

January 5, 2022

21STCV04746

Motion for Terminating Sanctions filed by Defendant Robert Alexander Szatowski

The motion is denied.

Moving party to provide notice.

This is an action for battery and assault arising from an altercation that took place in September 2019. Plaintiff Gregory Tecoz filed his Complaint against Robert Alexander Szatowski on February 5, 2021.

On October 26, 2022, the Court granted Defendant’s motion to compel further responses to requests for production. 

On December 9, 2022, Defendant filed the instant motion for terminating sanctions.

Moving Arguments

Defendant argues that terminating sanctions are appropriate because Plaintiff failed to obey the Court’s October 26, 2022 order by failing to serve responses to Defendant’s requests for production without objections. 

Opposing Arguments

Plaintiff argues that Defendant’s motion for terminating sanctions should be denied because Plaintiff has since complied with the October 26, 2022 minute order. Plaintiff’s counsel alleges that she inadvertently failed to calendar the 30-day deadline to serve responses.

Reply Arguments

None filed.

“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].) 

Defendant argues that the Court may grant terminating sanctions because Plaintiff failed to obey the Court’s order compelling discovery responses.

On October 26, 2022, the Court granted Defendant’s motion to compel further responses to requests for production. The minute order reads that Plaintiff is to provide verified responses within 30 days after the date of the order. The deadline for Plaintiff to serve responses was November 25, 2022. Plaintiff failed to serve responses to Defendant’s request for productions by this deadline. (Meehan Decl., ¶15.) Plaintiff’s counsel testifies that the previous attorney assigned to this matter left the firm without notice and had not been using the firm’s calendar system to calendar court dates. (Shukry Decl., ¶5.) As a result, the 30-day deadline to serve further responses was not calendared. (Id.) On December 8, 2022, Defendant’s counsel informed her that the responses were late. (Shukry Decl., ¶6.) Plaintiff’s counsel apologized for the oversight and promised to serve the responses as soon as possible. (Id.) Defendant filed the instant motion on the same day. (Id., ¶11.) Plaintiff served responses on December 21, 2022. (Id., ¶12.)

Terminating sanctions are not appropriate here because there is no evidence that Plaintiff’s failure to comply with the Court’s October 26, 2022 order was willful. Plaintiff’s counsel testifies that the previous attorney working on this matter did not calendar the deadline, causing Plaintiff to inadvertently miss the deadline. Plaintiff’s failure to comply with the Court’s order is not preceded by a history abuse. Plaintiff has actively participated in discovery and did serve responses, though late. Thus, Defendant’s motion for terminating sanctions is denied.

In the alternative, Defendant seeks monetary sanctions pursuant to Code Civ. Proc., section 2030.290, subd. (c), which provides that a court may grant monetary sanctions in lieu of or in addition to nonmonetary sanctions if a party fails to obey an order compelling answers to discovery requests. Here, there is no evidence that Plaintiff willfully failed to obey the Court’s October 26, 2022 order compelling Plaintiff to serve further responses to Defendant’s discovery requests without objections. Rather, it appears that there was a mistake here. When Defendant learned of the mistake instead of waiting a short time to see if the mistake was corrected, Defendant filed the motion on the same day as Defendant learned of the situation. Under these circumstances, the Court declines to impose sanctions.