Judge: Katherine Chilton, Case: 21STLC08581, Date: 2022-10-05 Tentative Ruling

Case Number: 21STLC08581     Hearing Date: October 5, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR TERMINATING SANCTIONS

MOVING PARTY:   Plaintiff Westlake Services

RESP. PARTY:         None

MOTION FOR TERMINATING SANCTIONS

(CCP §§ 2023.010, et seq.)

TENTATIVE RULING:

Plaintiff Westlake Services’ Motion for Terminating Sanctions, Striking Defendants’ Answer is GRANTED.  Defendants PFA, Colossal, and Rates’ joint Answer is HEREBY STRICKEN.

Plaintiff may file a request for entry of default.  However, Plaintiff’s request for further monetary sanctions is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          None filed as of October 3, 2022                [   ] Late                      [X] None REPLY:                     None filed as of October 3, 2022                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On December 3, 2021, Plaintiff Westlake Services, LLC dba Westlake Financial Services (“Plaintiff’ or “Westlake”) filed an action against PFA Autos Inc. dba Professional Auto Sales (“PFA”), Colossal, Inc. dba Professional Auto Sales (“Colossal”), and Jordan Maurice Rates aka Jordan M. Rates aka Jordan Rates (“Rates”) (collectively “Defendants”) for 1) open book account, 2) account stated, 3) reasonable value, 4) breach of contract, and 5) breach of guarantee.  On January 24, 2022, Defendants, collectively, filed an Answer, denying all allegations in the Complaint.

On May 31, 2022, the Court granted Plaintiff’s Motion to Compel Responses to Special Interrogatories, Set One, and Demand for Identification, Production, Inspection, and Copying of Documents, and Other Tangible Things, Set One.  (5-31-22 Minute Order.)  The Court also granted sanctions in the amount of $1,948.80 for both motions to be paid within thirty (30) days’ notice of the order and ordered Defendants to serve verified responses, without objections, to the discovery propounded.  (Ibid.)

On July 7, 2022, Plaintiff filed the instant Motion for Terminating Sanctions, Striking Defendants’ Answer and Entering Default (“Motion”).  Plaintiff requests to submit on the pleadings, unless required to make an appearance at the hearing.  (Mot. p. 2.)

No opposition has been filed.

On August 15, 2022, the Court granted Counsel Jonathan Rubinfeld’s Motion to be Relieved as Counsel as to Defendants PFA, Colossal, and Rates.  (8-15-22 Minute Order.)

II.              Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions.  (Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

Code of Civil Procedure § 2030.040 requires that “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”  Furthermore, the notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.  (Code of Civ. Proc. § 2030.040.)

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(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(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(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.)  “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”  (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.)

III.            Discussion

Plaintiff moves for for terminating sanctions, striking Defendants’ Answer to the Complaint, entry of default, and monetary sanctions in the sum of $1,872.75 for expenses incurred in bringing the instant Motion.  (Mot. p. 2.). Plaintiff argues that sanctions are appropriate because Defendants have failed to respond to Plaintiff’s Special Interrogatories, Set One, and Demand for Identification, Production, Inspection and Copying of Documents, even after a court order compelling responses on May 31, 2022.  (Ibid.)

Plaintiff served its first set of discovery requests on January 24, 2022.  (Ibid. at p. 4.)  Defendants never responded to the discovery requests, so Plaintiff filed motions to compel.  (Ibid.). Defendants did not oppose Plaintiff’s motions and on May 31, 2022, the Court granted the motions to compel, ordered Defendants to provide verified responses, without objections, and to pay sanctions in the amount of $1,948.80, within 30 days of notice of the order.  (Ibid; 5-31-22 Minute Order.)  As of the date of the Motion, Defendants have not submitted responses and thus, have not complied with the Court’s order.  (Ibid; Freed Decl. ¶ 4.)  Plaintiff argues that “Defendants have intentionally obstructed Plaintiff’s efforts to prosecute this action, and has certainly interfered with the court's mission of seeking truth and justice.”  (Mot. p. 6.)

Plaintiff also argues that self-represented parties have the same responsibilities as those represented by counsel.  (Ibid. at pp. 6-7.)

Plaintiff also requests monetary sanctions in the amount of $1,872.75, as follows: attorney’s fees at a billing rate of $600.00 per hour for one (1) hour of preparing the Motion and two (2) hours for a court appearance, as well as filing fees of $60.00 and $12.75 for e-filing.  (Freed Decl. ¶ 6.)  Counsel for Plaintiff states that he has been practicing in the field for 35 years and his billing rate of $600 is comparable for those with similar level of experience.  (Ibid. at ¶¶ 2, 5; Ex. 2.)

The Court notes that since filing an Answer on January 24, 2022, Defendants have not responded to discovery requests, motions to compel discovery, or the instant motion for sanctions.  It appears that Defendants have willfully abandoned this litigation.  Although terminating sanctions are a harsh penalty, the history in the instant case demonstrates that Defendants are unwilling to comply with the Plaintiff’s requests or the Court’s orders and thus, lesser sanctions have not been effective in producing compliance.  Defendants have not opposed the instant Motion to argue that their failure to engage in discovery efforts has been due to inability to comply, as opposed to bad faith.

For these reasons, the Court finds an order striking Defendants’ Answer to be appropriate.  Defendants PFA, Colossal, and Rates’ Answer is HEREBY STRICKEN.  Plaintiff may file a request for the entry of default.

However, the Court declines to award further monetary sanctions as doing so would be futile in producing compliance.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Westlake Services’ Motion for Terminating Sanctions, Striking Defendants’ Answer is GRANTED.  Defendants PFA, Colossal, and Rates’ joint Answer is HEREBY STRICKEN.

Plaintiff may file a request for entry of default. However, Plaintiff’s request for further monetary sanctions is DENIED.

The Court now sets the matter as follows: Order to Show Cause Re: Entry of Default and Default Judgment/Dismissal is scheduled for DECEMBER 21, 2022 at 9:30 AM in Department 25, Spring Street Courthouse. Failure to appear or failure to enter default judgment by the next hearing date may result in the case being dismissed.

The Clerk hereby gives notice to the moving party, who is to give notice.