Judge: Joseph Lipner, Case: 21STCV25293, Date: 2024-12-10 Tentative Ruling

Case Number: 21STCV25293    Hearing Date: December 10, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Christopher Roberson (“Defendant”) moves for terminating, issue, and evidentiary sanctions against Plaintiffs Lilian Manier (“Lilian”) and Michelle Manier (“Michelle”) (the Court uses the parties’ first names for clarity only, and means no disrespect).

The Court DENIES the motion for terminating, evidentiary, and issue sanctions at this time but continues this hearing to February 13, 2025 at 8:30 a.m. for further consideration of the issue

 The Court ORDERS Plaintiffs to comply with the prior court orders ordering each of their depositions by no later than January 31, 2025. If Plaintiffs continue to fail to comply, the Court is willing to reconsider the issue, and may grant terminating or other sanctions.

Defendant shall give notice and file proof of service that he has done so.

Background

This is a landlord-tenant case. Plaintiffs were tenants at the residential property located at 1278 S. Burnside Avenue, Los Angeles, California 90270 (the “Property”). Defendant owned the Property while Plaintiffs lived there.

Plaintiffs allege a number of plumbing and tiling defects during their tenancy. Around August 13, 2020, Plaintiffs reported the defects to the City of Los Angeles Housing Department and requested an inspection of their unit. The Housing Department inspected the unit and notified Plaintiffs that Defendant was expected to fix the problems.

Plaintiffs allege that Defendant did not fix the plumbing issues. Plaintiffs allege that by October 18, 2020, the toilet had still not been fixed and feces and sewage started coming out of the toilet whenever Plaintiffs used it. Plaintiffs allege that they had to resort to relieving themselves in plastic bags, which caused them extreme back pain.

Plaintiffs allege that around November 2, 2020, Plaintiffs notified Defendant that they would be withholding rent until the issues with the Property were fixed. On November 5, 2020, Defendant initiated an unlawful detainer action against Plaintiffs.

Plaintiffs allege that Defendant sexually harassed them during their tenancy. Plaintiffs allege that Defendant asked Lilian when she had last slept with a man and told her that he was asking because he wanted to date her. Plaintiffs allege that Defendant asked Michelle if she was gay and asked her if she believed in gay marriage.

Plaintiffs allege that Defendant would often scream and yell at Plaintiffs, bang on their door for no reason, show up at their unit without notice, unlock their door without their permission, and call the police on them for no apparent reason.

Plaintiffs filed this action on July 9, 2021. The operative complaint is now the First Amended Complaint (“FAC”), which raises claims for (1) breach of the implied warranty of habitability; (2) negligence; (3) nuisance; (4) breach of warranty of quiet enjoyment; (5) retaliatory eviction in violation of Civil Code, section 1942.5(a); (6) retaliatory eviction in violation of Civil Code, section 1942.5(d); (7) retaliatory eviction in violation of Government Code, section 12989.1 (FEHA); (8) retaliatory eviction in violation of the Unruh Act, Civil Code, section 51; (9) intentional infliction of emotional distress; and (10) negligent infliction of emotional distress.

On May 4, 2022, Defendant noticed Lilian’s deposition for the dates of June 1, 2022 and June 2, 2022. Defendant noticed Michelle’s deposition for June 2, 2022.

On May 17, 2022, Plaintiffs’ counsel asked to reschedule the June 2, 2022 depositions.

On June 27, 2022, Defendant attempted to reschedule the June 2, 2022 deposition, but Plaintiffs’ counsel advised that Plaintiffs were not available for the month of July.

On September 21, 2022, Defendant attempted to meet and confer regarding the deposition dates, but no resolution was reached.

On October 6, 2022, Defendant noticed both of Plaintiffs’ depositions for October 21, 2022. Due to Plaintiffs’ illness, Plaintiffs’ counsel cancelled these depositions.

On January 18, 2023, Defendant noticed Plaintiffs’ depositions for February 6, 2023. On April 10, 2023, Plaintiffs’ counsel advised that Plaintiffs would not be available for these depositions.

On August 11, 2023, the Court signed a Stipulation and Order between counsels for Plaintiffs and Defendant indicating that the parties would have Plaintiffs’ depositions and engage in private mediation.

On August 22, 2023, Defendant noticed Plaintiffs’ depositions for September 5, 2023 and September 6, 2023. There is no indication in the record that these deposition dates went forward.

On February 13, 2024, Defendants’ current counsel, Lewis Brisbois, substituted into this case.

On March 5, 2024, Defendant noticed Plaintiffs’ depositions for May 23 and 24, 2024. On May 19, 2024, Plaintiffs’ counsel objected to both depositions on the grounds that they were unilaterally noticed and that Plaintiffs’ counsel was unavailable. On Monday, May 20, 2024, Defense counsel asked Plaintiffs’ counsel to provide new deposition dates by May 24, 2024. Plaintiffs’ counsel did not provide new dates.

On June 24, 2024, Defendant moved to compel the depositions of Plaintiffs.

On July 12, 2024, Plaintiffs’ counsel moved to be relieved as counsel. Plaintiffs’ counsel was relieved on August 13, 2024.

On August 15, 2024, the Court granted Defendant’s motions to compel Plaintiffs’ depositions.

On August 16, 2024, Defendant served Plaintiffs with a notice of ruling as to the motion to compel, and noticed Plaintiffs’ depositions for September 17 and 18, 2024. Plaintiffs did not appear at their depositions on the noticed dates.

On September 30, 2024, Defendant filed the two motion for sanctions at hand, one against each Plaintiff. Defendant requests terminating, issue, and evidentiary sanctions against each Plaintiff. No party filed an opposition to either of the sanctions motions.

Legal Standard

Where a party misuses the discovery process, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc. §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., §§ 2023.010(d), (g).) 

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Id. at 788.) 

Monetary sanctions may be imposed “ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct…unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc., § 2030.030, subd. (a).) 

Issue sanctions may be imposed “ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code of Civ. Proc., § 2030.030, subd. (b).) 

Evidence sanctions may be imposed “by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code of Civ. Proc., § 2030.030, subd. (c).) 

In more extreme cases, the Court may also impose terminating sanctions by “striking out the pleadings or parts of the pleadings,” “staying further proceedings,” “dismissing the action, or any part of the action,” or “rending a judgment by default” against the party misusing the discovery process. (Code of Civ. Proc. § 2030.030(d).) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate.  (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.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Further, preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) 

Discussion

            As discussed above, terminating 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, supra, 196 Cal.App.4th at p. 1516.) Furthermore, terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater, supra, 60 Cal.App.4th at p. 1326.) 

“[T]he trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective. (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191–192.) In Department of Forestry & Fire Protection v. Howell, the trial court found that “[plaintiff’s] willful, repeated and egregious misuses of the discovery process permeated nearly every single significant issue in this case to an extent that threatened the integrity of the judicial process and made it implausible that defendants could ever receive a fair trial. (Id. at 197 [internal quotations omitted].)

Here, there has been no previous noncompliance with a rule or order, and Plaintiffs only failed to appear at their most recent deposition dates. However, the record does show an apparent pattern of evading depositions by various means. If this conduct persists, Defendant will not be adequately able to prepare for trial, as Plaintiffs are likely to be key witnesses regarding the issues at the property and Defendant’s conduct towards them. However, there is still time before trial, which is set for June 2, 2025.

The Court denies the motion for terminating, evidentiary, and issue sanctions at this time. The Court orders Plaintiffs to comply with the prior court orders ordering each of their depositions, and to do so no later than January 31, 2025. If Plaintiffs continue to fail to comply, the Court may have no choice but to issue terminating sanctions.

Defendant must give notice of this order to Plaintiffs and file a proof of service that he has done so.