Judge: Jill Feeney, Case: 21STCV04746, Date: 2023-01-19 Tentative Ruling
Case Number: 21STCV04746 Hearing Date: January 19, 2023 Dept: 30
Department 30, Spring Street Courthouse
January 19, 2023
21STCV04746
Motion for Terminating, Evidentiary or Monetary Sanctions filed by Defendant Robert Alexander Szatowski
DECISION
The motion is granted in part and denied in part. The Court declines to impose terminating or evidentiary sanctions, but does impose monetary sanctions.
Plaintiff is ordered to serve further code complaint responses as outlined below within 30 days after the date of this order.
Sanctions in the amount of $1,710 are imposed jointly and severally against Plaintiff and Plaintiff’s Counsel of Record. Sanctions are due within 30 days after the date of this order.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
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.
Summary
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
Defendant on reply argues that Plaintiff’s responses do not comply with the Court’s order because the responses still object to every request and only agree to produce certain documents instead of all documents as ordered by the Court. The responses also fail to provide witnesses’ contact information.
Legal Standard
“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].)
Discussion
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. Defendant argues on reply that Plaintiff’s counsel’s declaration based on an error regarding deposition dates. Such an error is insufficient to show that Plaintiff’s counsel’s entire declaration is false.
Plaintiff has actively participated in discovery and did serve responses, though late.
It appears that the issue of objections is now resolved. However, the supplemental responses are still not code compliant. For each request, Plaintiff must state that “all documents or things within the demanded category that are in the possession, custody, or control of that party...will be included in the production.” (Code of Civil Procedure Section 2031.220.) For those responses (such as Request No. 10) where Plaintiff indicates an inability to comply, Plaintiff must provide the required wording that “a diligent search and reasonable inquiry has been made in an effort to comply with that demand.” (Code of Civil Procedure Section 2031.230.) Further,
“the statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never existed, has never been, or is no longer, in the possession, custody or control of the responding party. The statement shall set forth the name and address of any natural person or organization know or believed by that party to have possession, custody, or control of that item or category of item.” (Id.) If Plaintiff was with other individuals at the time of the incident and he has their names and contact information, it must be produced. If he does not have the information, that must be explained using the required code-compliant language.
Although Plaintiff has not fully complied with the Court’s order, the Court does not find it appropriate to impose terminating sanctions.
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, Plaintiff failed to obey the Court’s October 26, 2022 order compelling Plaintiff to serve further responses to Defendant’s discovery requests without objections. Because Plaintiff failed to obey the Court’s order, Defendant’s request for monetary sanctions is granted. Defendant’s request for sanctions, however, is excessive. The Court awards $1,710 in sanctions for three hours of attorney time at a rate of $550 an hour and $60 in filing fees.
Defendant also argues that he is entitled to additional sanctions because Plaintiff is refusing to appear for deposition and has repeatedly frustrated discovery. However, Plaintiff’s deposition is not the subject of this motion and Plaintiff has not violated a court order related to a deposition. If Defendant wishes to compel Plaintiff to appear for deposition, Defendant must file an appropriate motion. That said, the Court urges Plaintiff to cooperate and set a deposition date.
