Judge: Joseph Lipner, Case: CASENO, Date: 2024-04-04 Tentative Ruling

Case Number: CASENO:22STCV    Hearing Date: April 4, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Property I.D. Corporation (“Defendant”) moves for issue sanctions and monetary sanctions against Plaintiff Ebony Elain Moss (“Plaintiff”) for her failure to comply with the Court’s January 16, 2024 discovery order.

The Court DENIES Defendant’s request for issue sanctions.

The Court GRANTS Defendant’s request for monetary sanctions in the amount of $4,391.00. Plaintiff shall pay this amount to Defendant’s counsel within 30 days of the issuance of this order.

Background

Plaintiff filed this action on September 8, 2022 against Defendant, her former employer, alleging (1) discrimination under FEHA; (2) retaliation under FEHA; (3) failure to prevent discrimination, harassment, and retaliation; and (4) wrongful termination.

On October 26, 2023, Defendant answered and filed a Cross-Complaint, raising cross-claims for (1) breach of fiduciary duty of loyalty; and (2) violation of Comprehensive Computer Data and Access Fraud Act.

On August 24, 2023, Defendant served Plaintiff with the discovery at issue. From September 27, 2023 to October 30, 2023, counsel for Plaintiff and Defendant met and conferred, resolving a substantial portion of their disputes.

On January 16, 2024, the Court ordered Plaintiff to provide, within 30 days, (1) full and complete further responses and responsive documents to Defendant’s Requests for Production (“RFP”) Nos. 1 and 11 and (2) full and complete answers to Form Interrogatory – Employment (“FIE”) Nos. 202.1, 203.1, 205.1, and 217.1.

Defendant filed this motion for sanctions on February 21, 2024.

On February 22, 2024, 6 days after the Court’s deadline to provide supplemental responses, Plaintiff served supplemental responses to FIE Nos. 202.1, 203.1, and 205.1. (Supp. Corpuz Decl. ¶ 3.) Plaintiff still has not supplemented FIE No. 217.1 or the RFPs. (Supp. Corpuz Decl. ¶ 4.)

On March 20, 2024, Plaintiff’s counsel submitted a declaration in opposition to the motion. Defendant filed a reply on March 27, 2024.

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).)   

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.) 

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.) 

Discussion

          Plaintiff’s counsel argues that his late service of the supplemental responses is attributable to excusable neglect because he believed that he did not need to serve responses while Plaintiff had a writ of mandate filed with the Court of Appeal from February 2, 2024 to February 16, 2024. This argument is unpersuasive – Plaintiff’s supplemental responses were still missing items that the Court ordered her to produce, and furthermore, the Court of Appeal denied the writ before Plaintiff’s deadline to respond even arrived.  Moreover, the writ challenged the award of sanctions, not the discovery order itself.

          Defendant points out ways in which Plaintiff’s most recent discovery responses have not been forthcoming and honest.  For example, Plaintiff previously stated that her first post-termination job was in May 2023, Defendant later learned from a third-party subpoena that Plaintiff had represented in a job application that she had worked for Uber from December 2020 through October 2023. (Supp. Corpuz Decl. ¶¶ 5-6.) Although Defendant then requested the production of Plaintiff’s pay records from Uber, Plaintiff only produced records for part of the period where she purportedly worked there. (Corpuz Decl. ¶ 7.)

          Defendant also argues that Plaintiff misrepresented her hourly pay at her current employer as being $18.00 rather than $18.50 as demonstrated by her pay stubs, and that Plaintiff had accepted a job with the County of Los Angeles on October 2, 2023, several days before her initial discovery responses were due, which she did not disclose in her responses. (Corpuz Decl. ¶ 8.)

          Given the non-compliance with Court orders and the continuing issues with discovery, sanctions are appropriate.

Monetary Sanctions

Defendant requests monetary sanctions in the amount of $6,391.00 for the costs and fees incurred bringing this motion.

          Defendant requests an hourly rate of $355.00 for Olatomiwa Aina. The Court finds this rate to be reasonable in light of Aina’s four and a half years of experience.

          Defendant requests a total of 12.2 hours for Aina. The Court finds this time to be reasonable.  While Defendant asks for $6,331 in attorney’s fees, this appears to be a math error.  12.2 times 355 is $4,331, not $6,331. 

          Defendant also reasonably requests its $60 filing fee.

The Court therefore awards $4,391 in monetary sanctions.

Issue Sanctions

          Defendant also requests the following issue sanctions:

(1) The documents attached to the e-mails dated August 16, 2023, (Exhibit 2 to the

Declaration of Jessica R. Corpuz) were sent from emoss@owenersescrow.com to

ebom28@gmail.com and all of such documents were received by Plaintiff at ebom28@gmail.com;

(2) Plaintiff has suffered no loss of income as a result of the termination of her employment by Defendant;

(3) Plaintiff is barred from introducing any evidence or argument that she has lost income as a result of the termination of her employment by Defendant;

(4) Defendant has not engaged in any purported adverse employment action against Plaintiff that was discriminatory, except that Plaintiff may solely contend that her termination was discriminatory;

(5) Plaintiff is barred from introducing any evidence or argument that Defendant has engaged in any adverse employment action against her that was discriminatory, except  that Plaintiff may solely contend that her termination was discriminatory;

(6) Plaintiff was not unlawfully harassed in her employment with Defendant;

(7) Plaintiff is barred from introducing any evidence or argument that she was unlawfully harassed in her employment with Defendant;

(8) Defendant has not engaged in any adverse employment action against Plaintiff in violation of public policy, except that Plaintiff may solely contend that her termination was in violation of public policy;

(9) Plaintiff is barred from introducing any evidence or argument that Defendant has engaged in any adverse employment action against Plaintiff that was in violation of public policy, except that Plaintiff may solely contend that her termination was in violation of public policy; and

(10) Plaintiff is deemed to have admitted the following:

(a)When Plaintiff was transferred to a customer service position, her benefits remained the same. (Request for Admission No. 12);

(b) Plaintiff was not denied access to the executive suite because of race. (Request for Admission No. 14);

(c) Plaintiff yelled profanity in the workplace. (Request for Admission No. 20); and

(d) Plaintiff was terminated, in part, because of her aggressive and unprofessional behavior towards her work colleagues. (Request for Admission No. 23).

          Many of the requested issue sanctions seem unwarranted and have no connection to the discovery at issue. They also appear unwarranted considering the magnitude of the discovery derelictions to date.

However, the Court notes that if Plaintiff’s conduct continues, the Court may well grant issue or evidentiary sanctions.  Any such request for sanctions by Defendant should be specifically tailored to the discovery misconduct at issue.  At present, the Court denies the request for issue sanctions.