Judge Jill Feeney, Case 21STCV30484 2023-02-09 Tentative Ruling

Plaintiff argues that the documents she received from USEF were already redacted when she received them and that she produced every document she received from USEF. Plaintiff was able to download additional horse and riding records from the USEF website that were unredacted. Additionally, Plaintiff was unable to subpoena records from USEF because its custodian of records was located in Kentucky and would not have been able to obtain the records by the 15 day deadline.

Defendant argues that Plaintiff improperly failed to explain why she does not possess a single original sales document and that her response fails to state that she cannot produce the records according to Code Civ. Proc., section 2031.230. Defendant continues to argue that Plaintiff possesses original documents.

“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].)

On November 3, 2022, the Court granted Defendant’s motion to compel further discovery responses and ordered Plaintiff to provide further verified responses without objections and to produce unredacted versions of all documents responsive to each request within 15 days after the date of the order.

On January 5, 2023, the Court continued this matter to allow Plaintiff to file additional briefing and attach unredacted versions of email correspondence with USEF and all email correspondence between Plaintiff and USEF. Plaintiff was also to attach further responses indicating why the original documents were not produced, attaching the original responses and indicating why the original responses were not Code compliant.

In the original opposition, Defendant’s counsel testifies that on November 18, 2022, Plaintiff produced her second further responses and objections to Defendant’s requests for production of documents, set three. (Mandell Decl., ¶9.) Plaintiff continued to assert objections and the responses contained incomplete pages, blurry pages, and illegible pages. (Id., ¶10.) Plaintiff also redacted information including the names of the horses Plaintiff bought and sold, the names of the buyers or sellers, and the contact information of the buyers and sellers. (Id.) Although Plaintiff represented that others had redacted the documents or that her father had redacted the documents, Plaintiff’s father maintained the documents himself and passed away before this action was filed. (Id., ¶11.)

Plaintiff, in her supplemental briefing testifies that on November 1, 2022, Plaintiff’s counsel sent Defendant all documents that were in Plaintiff’s possession, custody, and control respective to Defendant’s requests for production. (Nabati Decl., ¶4.) Plaintiff’s counsel also explained that she would need to subpoena some records from USEF. (Id.) At the November 3, 2022 hearing on Defendants’ motion to compel, Plaintiff explained that the parties agreed to the redactions and that Plaintiff did not possess unredacted versions of the documents. (Id., ¶6.) Plaintiff’s counsel also provides copies of the email correspondence with USEF showing the documents were already redacted by USEF when she received them. (Id., ¶14.) Plaintiff’s counsel obtained some horse and riding records from the USEF website and produced them. (Id., ¶16.) On November 8, 2022, Plaintiff’s counsel attempted to subpoena the records from USEF, but was informed that a California subpoena would not be valid and enforceable in Kentucky. (Id., ¶17.) On January 10, 2023, Plaintiff withdrew all claims related to equestrian activities. (Id., ¶19.)

Plaintiff’s responses to Defendant’s request for production of documents states that after “conducting a diligent search and reasonable inquiry, the only responsive documents Plaintiff has in her possession, custody or control are redacted documents—the un-redacted versions have been misplaced, lost, and Plaintiff cannot remove the redactions.” (Plaintiff’s brief, Exh. B.)

As before, the Court may not grant Defendant’s motion to dismiss because Plaintiff’s failure to comply with the November 3, 2022 order was not preceded by a history of abuse and the evidence does not show that less severe sanctions would not produce compliance with the discovery rules. Plaintiff participated in discovery conferences and appeared at the hearing on the motion to compel further discovery responses in dispute. Given Plaintiff’s active participation in litigation, terminating sanctions are not proper. Plaintiff’s supplemental briefing shows that she received the documents already redacted from USEF and simply does not possess originals. Moreover, Plaintiff made a good faith attempt to subpoena the records from USEF. Plaintiff also confirms that she has waived all claims related to her equestrian activities.

Because Plaintiff made good faith attempts to comply with the Court’s November 3, 2022 order and served code-compliant responses to Defendant’s request for production, Defendant’s motion for non-monetary and monetary sanctions is denied.