Judge: Kerry Bensinger, Case: 20STCV19525, Date: 2023-04-28 Tentative Ruling

Case Number: 20STCV19525    Hearing Date: April 28, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On October 15, 2022, Plaintiff Sylvia Ramirez filed a Complaint against Smart & Final, LLC and Smart & Final Stores, LLC for injuries arising from a slip and fall incident on defendants’ premises.

On April 5, 2023, Plaintiff filed this motion for terminating sanctions against Smart & Final, LLC, for failing to comply with the Court’s order to produce documents responsive to demands for production, set 4, numbers 109-115.  Alternatively, Plaintiff requests issue or evidentiary sanctions.  Plaintiff also requests additional monetary sanctions.

On April 17, 2023, Smart & Final, LLC (hereinafter, “Defendant”) filed an opposition.

II.      LEGAL STANDARD FOR TERMINATING SANCTIONS

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process.  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, subds. (d), (g).)  A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment.  (Code Civ. Proc., § 2023.030, subd. (d).)  A violation of a discovery order is sufficient for the imposition of terminating sanctions.  (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.)  Terminating sanctions are appropriate when a party persists in disobeying the court’s orders.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)   

The court should consider the totality of the circumstances, including 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 discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  If a lesser sanction fails to curb abuse, a greater sanction is warranted.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.”  (Deyo, supra, 84 Cal.App.3d at p. 787.) 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, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.) 

A terminating sanction is a “drastic measure which should be employed with caution.”  (Deyo, 84 Cal.App.3d at p. 793.)  “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.”  (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)  While the court has discretion to impose terminating sanctions, these sanctions “should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Deyo, 84 Cal.App.3d at p. 793.)  “[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.”  (Ibid.)  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information.  (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].) 

III.     ANALYSIS

Plaintiff seeks imposition of terminating sanctions because Defendant failed to produce surveillance videos in violation of this Court’s December 5, 2022 order.  Specifically, Defendant produced videos from November 28, 2022 to December 1, 2022 instead of the requested dates of June 9, 2022 to June 13, 2022. “Terminating sanctions are appropriate when a party persists in disobeying the court’s orders.”  (Deyo, supra, 84 Cal.App.3d at pp. 795-796.)  Here, terminating sanctions are not appropriate.  As noted in Plaintiff’s motion and the Court’s December 5, 2022 order, Defendant no longer had video footage from June 9, 2022 to June 13, 2022.  (See Motion, p. 4:19-22; 12/05/22 Minute Order.)  Rather, the Court ordered counsel for Defendant “to provide video taken from the same camera on/at the time or roughly equivalent to the week/time/days as the ‘overwritten’ video.  Additionally, counsel for Defendant is to provide four days of video footage.”  (12/05/22 Minute Order.)  Plaintiff acknowledges that Defendant has complied with this order by producing videos from November 28, 2022 to December 1, 2022.  (See Motion, p. 4:23-26.)  Defendant has complied with the Court’s order.  Under these facts, imposition of terminating sanctions is improper.   

Plaintiff further argues that Defendant should have produced videos from the earliest date available prior to the December 5, 2022 hearing because Defendant’s represented that surveillance is saved for 30-60 days.  However, that issue is separate and apart from whether Defendant failed to comply with the Court’s order. 

Accordingly, Plaintiff’s motion for terminating sanctions is DENIED.  As the Court finds Plaintiff’s motion lacks merit, Plaintiff’s request for other sanctions is also DENIED. 

IV.     CONCLUSION

Plaintiff’s motion for terminating sanctions is denied.

Plaintiff’s request for imposition of other sanctions is denied.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

                                                          Dated this 28th day of April 2023