Judge: John J. Kralik, Case: 22BBCV00901, Date: 2023-10-13 Tentative Ruling

Case Number: 22BBCV00901    Hearing Date: October 13, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Margaret Stephens (“Plaintiff”) alleges that on November 3, 2021, she fell and was injured as a result of a dangerous condition of the premises located at or near a sidewalk on the northwest corner of the intersection of N. 1^st Street and E. Olive Avenue in Burbank.  Plaintiff alleges that Defendant City of Burbank (“Defendant”) negligently designed, constructed, maintained, controlled, and/or managed the premises, which constituted a dangerous and defective condition.

The complaint, filed November 2, 2022, alleges a single cause of action for premises liability.

B.     Relevant Background and Motion on Calendar

On June 16, 2023, Defendant’s 2 unopposed motions to compel initial responses from Plaintiff for: (1) Form Interrogatories and Special Interrogatories, set one; and (2) Document Demands, set one were granted.  The Court ordered Plaintiff to provide verified responses without objection within 20 days of notice of the order.  The Court also awarded Defendant sanctions in the total amount of $950, to be paid within 20 days of notice of the order. 

On July 19, 2023, Defendant filed a motion for terminating, issue, and/or evidentiary sanctions against Plaintiff and for monetary sanctions in the amount of $900.   On July 19, 2023, Defendant filed an amended notice of motion with the correct hearing date. 

On October 2, 2023, Plaintiff filed opposition papers.

On October 6, 2023, Defendant filed a reply brief.

DISCUSSION

            Defendant moves for terminating sanctions or, alternatively, issue and evidentiary sanctions against Plaintiff for her willful failure to provide responses to the SROG and RPD pursuant to the Court’s order. 

A.    Terminating Sanctions

CCP § 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP § 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order.  The Court weighs the following factors when considering the present motion: (1) defendants’ conduct, indicating whether their actions were willful; (2) the detriment to the party seeking discovery; and (3) the number of formal and informal unsuccessful attempts to obtain discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

By way of background, Defendant states that it served on Plaintiff the written discovery requests (FROG, SROG, and RPD) on March 3, 2023, which caused Defendant to file 2 motions to compel initial responses, which were granted on June 16, 2023.  Pursuant to the Court’s order, Defendant argues that Plaintiff was required to provide responses by July 7, 2023, but Plaintiff failed to do so.  Defendant argues that Plaintiff’s actions amount to a violation of the Court’s order.

However, Defendant has not shown that Plaintiff’s conduct in failing to provide timely responses was willful.  Defendant has not stated what attempts were made to obtain the discovery after the Court’s order, such as by contact Plaintiff and her attorney via email or telephone to inquire about the discovery. 

In opposition, Plaintiff states that she does not dispute that the Court should impose monetary sanctions against her attorney, but that the Court should deny the remainder of the motion.  Plaintiff provides the declarations of Yoon S. Kim and G. Seth Mitchell.  Mr. Kim states that he has experienced a lot of turnover at his firm and had unqualified paralegals that caused delays and multiple mistakes.  Mr. Kim states that had this case not been transferred to Mr. Mitchell, Mr. Kim likely would not have been aware of the motion.  (Kim Decl., ¶18.)  Mr. Kim apologizes to the Court and counsel for the failures that occurred during the handling of the case, which included Plaintiff’s failure to provide complete and verified discovery responses.  (Id., ¶19.)  He states that the failure was not intentional or willful, was not the fault of Plaintiff, and was completely due to the inadvertence on his part.  (Id.)  Mr. Mitchell states in his declaration that as soon as he received the case file, he immediately had his paralegal ascertain hearing dates and deadlines.  (Mitchell Decl., ¶¶5-9.) He states that he attempted to rectify Mr. Kim and his staff’s former mistakes by preparing discovery responses, which were served on September 20, 2023.  (Id., ¶10; Ex. 1 [FROG set two and RFA set one responses].)  He states that he directed a check to be sent for the sanctions amount.  (Id., ¶12.)

The Court declines to award terminating sanctions in this case.  While the delay in providing responses is not ideal, Plaintiff’s counsel has explained the cause of the delay and shown that the failure to provide responses in a timely manner was due to the inadvertence of counsel and not as a result of Plaintiff’s willful failure to comply with the Court’s order.  Based on the representations of Plaintiff and counsel in the opposition papers, it appears that efforts have been made or are being made to comply with Plaintiff’s discovery obligations and the Court’s order regarding discovery.  Thus, to avoid litigation delays, the Court denies the motion for terminating sanctions.

For these reasons, the Court denies the motion for terminating sanctions. 

B.     Issue/Evidence Sanctions

Under CCP § 2023.030, the Court may impose issue sanctions ordering that designated facts be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.  (CCP § 2023.030(b).)  The Court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.  (CCP § 2023.030(c).)  Any motion for issue or evidentiary sanctions must be accompanied by a separate statement.  (CRC Rule 3.1345(a)(7).)  Again, two prerequisites for the imposition of non-monetary sanctions are: (1) there must be a failure to comply; and (2) the failure must be willful.  (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)  The party requesting sanctions under CCP § 2023.030 and §2023.010(g) must establish that the other party has failed to comply or disobeyed a court order to provide discovery.  (CCP §2023.010(g); Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 929 [first requirement of failure to comply].)

For the same reasons discussed above, the Court denies Defendant’s alternative request for issue and/or evidence sanctions.  If Plaintiff engages in further delays to provide discovery, the Court may consider sanctions in the future.  However, the Court does not find that at this time that non-monetary sanctions are warranted or that Plaintiff’s failure to comply with discovery obligations was willful.

C.     Monetary Sanctions

Defendant seeks monetary sanctions in the amount of $900.  In opposition, Plaintiff states that she does not dispute that monetary sanctions should be imposed.  (Opp. at p.2.) 

The Court awards monetary sanctions in favor of Defendant in the amount of $900. 

CONCLUSION AND ORDER

Defendant City of Burbank’s motion for terminating sanctions or, alternatively, issue and/or evidentiary sanctions is denied.  Defendant’s request for monetary sanctions is granted.  Plaintiff and her counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $900 to Defendant, by and through counsel, within 20 days of notice of this order.

Defendant shall provide notice of this order.