Judge Kerry Bensinger, Case 21STCV09345 2023-02-23 Tentative Ruling

On March 10, 2021, Wesley Schwartz (“Plaintiff”) initiated the present action by filing a Complaint against City of Los Angeles (“Defendant”) and Does 1 through 20. Plaintiff’s Complaint alleges the following causes of action: (1) Public Entity Liability; (2) Dangerous Condition of Public Property; and (3) Negligence. Plaintiff’s Complaint alleges that, on approximately August 28, 2020, Plaintiff was riding a scooter on Abbot Kinney Boulevard when, without warning, Plaintiff came into contact with a pothole, causing Plaintiff to fly from his scooter and collide into a bicycle rack on a sidewalk. Plaintiff contends Defendant acted negligently by failing to properly warn or otherwise inform persons of the pothole.

On November 10, 2022, Plaintiff filed this motion for discovery sanctions including 17 issue sanctions, evidence preclusion sanctions concerning 9 topics of evidence, argument, or examination, and monetary sanctions in the amount of $7,055. Plaintiff argues that sanctions are necessary due to: (1) Defendant’s failure to produce a person most qualified (“PMQ”) and refusal to have the PMQ provide testimony as a corporate representative, and (2) the belated disclosure of a third-party entity on August 31, 2022, SoCalGas, who Defendant now claims is responsible for the pothole.

In the December 29, 2022 minute order, the Court ordered Plaintiff to submit a separate statement to assist in its review and determination of Plaintiff’s motion for sanctions, especially as Plaintiff requested sanctions relating to many issues and categories of evidence that practically equate to a terminating sanction. The Court continued this hearing to February 23, 2023, and ordered the separate statement to be submitted no later than February 6, 2023 and Defendant’s reply/separate statement to be submitted no later than February 14, 2023.

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

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.)

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent 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 v. Killbourne (1978) 84 Cal.App.3d 771, 787.)

The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) 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 terminating sanction may be imposed by an order dismissing part or all of the action. (Code Civ. Proc., § 2023.030, subd. (d)(3).) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Plaintiff requests issue and evidentiary sanctions on the grounds that (1) Defendant produced witnesses who could not, or were instructed not to, competently testify in their official capacities as to all the ordered topics; (2) Defendant objected to the depositions of specific key witnesses from the City’s Bureaus of Street Services to fill in the gaps and refused to provide any dates that the witnesses had available as of filing this instant motion; and (3) Defendant disclosed for the first time another entity it believes is responsible for the condition.

To aid the Court in its analysis, the parties are ordered to meet and confer prior to the hearing and to provide the Court, at the hearing, with a list of the categories currently outstanding. Defendant is to inform the Court when the responsive deponents will be available.

Plaintiff contends that Defendant violated the Court’s 10/3/22 minute order which required Defendant to produce the PMQ on Topic Nos. 3-6, 13-14, 17-31, and 33-34 (the “Topics”) within ten days, without limitations.[1] Plaintiff claims Defendant violated the order by limiting the topics to which the PMQ would testify and by limiting the testimony by instructing the witness that he may respond on his own behalf but not on the City’s. Plaintiff contends that Defendant’s failure to produce key witnesses warrants sanctions because it evidences a strategy to restrict the PMQ testimony. Plaintiff claims that Defendant failed to produce key witnesses when witnesses Craig Shaw and Robert Sewell failed to appear for their depositions on October 6 and 7, 2022. Plaintiff claims that Defendant failed to meet and confer since Plaintiff’s counsel emailed Defendant’s counsel on October 3, 2022 and requested an available date before October 7, 2022, and if Defendant’s counsel failed to provide a date, Plaintiff’s counsel would take notice of nonappearance and file a motion to compel and sanctions. Plaintiff’s counsel also claims that they reached out to Defendant’s counsel again on October 12, 2022, requesting dates for the depositions of Shaw and Sewell, to no response.

In opposition, Defendant contends that it did not violate the prior court order because it produced many documents related to Plaintiff’s PMQ Deposition Notice, it may instruct PMQ witnesses to testify in their individual capacity about issues outside their designated PMQ deposition topics, and it may make objections because the court’s prior order did not bar objections. Defendant does not provide any specific arguments explaining its lack of diligence.

In reply, Plaintiff argues that it did not request terminating sanctions, that the requested sanctions are appropriate given Defendant’s pattern of abuse, Defendant provides no authority for instructing the witnesses to testify in their individual capacity.

While the Defendant was obligated to produce witnesses to satisfy the categories identified, not particular witness was competent to answer all of the questions. Defendant was entitled to collect the appropriate witnesses responsive to the categories at issue. Defendant’s delay is, no doubt, a problem. But Defendant’s conduct does not amount to an obstruction of discovery given the witnesses produced and the answers given.

The Court finds a motion to compel further responses to be a more suitable avenue for Plaintiff to attain the relevant information he seeks. As discussed below, the Court also finds that the requested sanctions are not narrowly tailored and that as a whole, they amount to terminating sanctions, which is not warranted here.

However, Defendant has failed to provide two remaining PMK witnesses for their depositions. The Court finds that Defendant’s delay shows a lack of diligence but does not rise to the level of the sanction pursued by the Plaintiff. Considering all the circumstances, Defendant’s conduct is not so egregious as to preclude Defendant from maintaining its case against Plaintiff. As discussed below, the cases which Plaintiff cites are distinguishable.

Thus, Defendant substantially complied with the prior court order and its conduct does not amount to a flagrant abuse of discovery. However, Defendant must produce the remaining witnesses and schedule their depositions without delay.

This instant motion for sanctions involves a discovery dispute as mentioned in the December 29, 2022, minute order, where the Court found that “[t]his dispute involves analyzing the content of a discovery response.” (12/29/22 Minute Order p. 2.) California Code of Civil Procedure section 2016.040 requires that parties meet and confer in a “reasonable and good faith attempt at an informal resolution of each issue presented by the [discovery] motion.”

Here, Plaintiff’s counsel failed to sufficiently meet and confer prior to filing this instant motion. On October 25, 2022, Plaintiff’s counsel sent an email stating its intention to move for evidentiary and issue sanctions as well as other motions to compel, but there was no indication to actually discuss with Defendant’s counsel regarding its discovery violations and/or insufficient responses. Plaintiff did not sufficiently meet and confer about Defendant’s objections and/or testimony limitations which are the subject of this instant motion.

may have created a dangerous condition of public property despite having multiple opportunities to do so. Plaintiff argues that Defendant’s delay amounts to concealment which time-barred Plaintiff from pursuing claims against SoCalGas.

Defendant argues the SoCalGas information may not be relevant, and discovered the information only after Plaintiff’s deposit, and there is no basis for the requested sanctions due to Defendant’s purported failure to identify SoCalGas since a court may only impose evidence or issue sanctions if a party fails to obey an order compelling a further response or inspection. Defendant also claims that Plaintiff is not precluded from obtaining relief against SoCalGas because of the relation back doctrine.

1. That, as a matter of law, Defendant City of Los Angeles, owned, maintained, and controlled the property where Plaintiff was injured.

2. That, as a matter of law, the property where Plaintiff was injured was in a dangerous condition at the time of the injury.

3. That, as a matter of law, the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred.

4. That, as a matter of law, one or more of Defendant City of Los Angeles’ employees acting within the scope of employment created the dangerous condition.

5. That, as a matter of law, Defendant City of Los Angeles had notice of the dangerous condition for a long enough time to have protected against it.

7. That the dangerous condition was a substantial factor in causing Plaintiff’s harm.

8. That, as a matter of law, Defendant City of Los Angeles had notice of the dangerous condition before the incident occurred.

9. That, as a matter of law, Defendant City of Los Angeles knew of the condition and knew or should have known that it was dangerous.

10. That, as a matter of law, Defendant City of Los Angeles employees knew of the condition and unreasonably failed to inform the entity about it.

11. That, as a matter of law, the dangerous condition existed for long enough time before the incident and was so obvious that Defendant City of Los Angeles reasonably should have discovered the condition and known that it was dangerous.

12. That, as a matter of law, Defendant City of Los Angeles did not have a reasonable inspection system, and if it had a reasonable inspection system, it would have revealed the dangerous condition.

13. That, as a matter of law, Defendant City of Los Angeles’ employees’ acts or omissions, which caused the dangerous condition, were unreasonable.

14. That, as a matter of law, Defendant City of Los Angeles is precluded from blaming SoCalGas for Plaintiff’s injuries under a third-party liability theory.

15. That, as a matter of law, Defendant City of Los Angeles owed a duty to Plaintiff to either notify SoCalGas of its duty to repair its failed trench cut, or, after a reasonable period of time no more than 1 year, assumed a duty and owed a duty to Plaintiff to inspect, repair, and/or maintain the failed trench cut made by SoCalGas, which in turn would become a dangerous of condition of public property that injured Plaintiff.

16. That, as a matter of law, Defendant City of Los Angeles breached its duty owed to Plaintiff.

17. That, as a matter of law, Defendant City of Los Angeles’ breach of its duty owed to Plaintiff was a substantial factor in cause Plaintiff’s harm.

18. That, pursuant to Evidence Code § 500, the burden is shifted to Defendant City of Los Angeles to prove that it was not negligent, that its negligence was not a substantial factor in causing Plaintiff’s injuries, and Plaintiff was not harmed.

19. That, pursuant to Evidence Code § 500, the burden is shifted to Defendant City of Los Angeles to prove that it did not own, control, and/or maintain the subject property, that the property was not in a dangerous condition at the time of the injury, that the dangerous condition did not create a reasonably foreseeable risk of the kind of injury that occurred, that the negligent conduct of Defendant City of Los Angeles’ employee was not acting in the course and scope of his employment when the dangerous condition was created, that Defendant City of Los Angeles did not have notice of the dangerous condition for a long enough time to have protected against it, that Plaintiff was not harmed, and that the dangerous condition was not a substantial factor in causing Plaintiff’s harm.

20. That Defendant City of Los Angeles is precluded from offering any evidence, argument, or examination that SoCalGas is responsible for Plaintiff’s harm.

21. That Defendant City of Los Angeles is precluded from offering any evidence, argument, or examination that any other third-party of entity is responsible for Plaintiff’s harm.

22. That Defendant City of Los Angeles is precluded from offering any evidence, argument, or examination that Plaintiff is responsible for his own harm.

23. That Defendant City of Los Angeles is precluded from offering any evidence, argument, or examination that operating a motorized scooter is a dangerous activity.

24. That Defendant City of Los Angeles is precluded from offering any evidence, argument, or examination that Plaintiff consumed alcohol on the night of the incident.

25. That Defendant City of Los Angeles is precluded from offering any evidence, argument, or examination that it complied with any state and/or federal law in the maintenance, control, inspection, and/or repair of the subject property where the incident occurred.

26. That Defendant City of Los Angeles is precluded from offering any evidence, argument, or examination that it complied with industry standards in the maintenance, control, inspection, and/or repair of the subject property where the incident occurred.

Plaintiff contends that issue and/or evidence sanctions are appropriate because Defendant engaged in the misuse of discovery by impairing Plaintiff’s attempts to secure evidence on certain points and sanctions are necessary so that Defendant does not profit from its own misconduct. Plaintiff cites to two cases to illustrate his point: Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202 (Karlsson) and Kuhns v. State of Cal. (1992) 8 Cal.App.4th 982 (Kuhns).

In opposition, Defendant argues that Plaintiff’s sanctions are tantamount to terminating sanctions because (1) they are preclusive on the legal issues associated with Plaintiff’s claims and Defendant’s defenses, and (2) they are dispositive on these claims and defenses. Defendant also contends that sanctions are not tailored to the purposed harm given that it (1) substantially complied with the Court’s Motion to Compel Order, (2) is currently working to complete the last two depositions associated with this order, and (3) its recent disclosure of SoCalGas’ possible role in creating a roadway conditions is unrelated to the subject accident. Finally, Defendant argues that Plaintiff’s cited authority is distinguishable.

In Karlsson, the court held that the lower court properly imposed evidence and issue preclusion sanctions for the defendant’s discovery violations. (Karlsson, supra, 140 Cal.App.4th at 1202.) There, the court imposed the sanctions after the fifth discovery motion filed by the plaintiff and as a result of the defendant’s attempt to conceal evidence during discovery. (Id.) Karlsson is distinguishable. Although Plaintiff contends Defendant refused to comply with the prior court order and that Defendant consistently blocked discovery, the Court finds that Defendant substantially complied, and that Plaintiff has another avenue to attain discovery by moving to compel further responses. Additionally, there is not the same level of a history of abuse as in Karlsson, where the sanctions were imposed after the fifth motion, here Plaintiff has only filed one prior discovery motion. Although Defendant may have delayed in its discovery obligations and failed to show diligence, Defendant’s conduct does not amount to discovery abuse or resulted in concealing of evidence such that evidence has become unavailable and sanctions are warranted.

Kuhns is also distinguishable for similar reasons. There, the court held that the trial court properly imposed issue preclusion sanctions because the defendant failed to comply with court orders and produce relevant information necessary for the plaintiffs to establish their case. (Kuhns, supra, 8 Cal.App.4th at pp. 985-987.) Unlike in Kuhns, where the lower court found that the defendant willfully failed and refused to produce documents as ordered by the court, here, Defendant’s conduct does not amount to a willful attempt to block discovery. As discussed above, Plaintiff may compel further responses to deposition testimony. The Court also agrees that many of the requested sanctions are irrelevant and not narrowly tailored to Defendant’s misconduct.

With respect to SoCalGas, Plaintiff has not demonstrated Defendant deliberately withheld the information, failed to provide truthful discovery responses or knew of this information at an earlier date. Nor has Plaintiff identified the relevance or demonstrated actual prejudice.

Because the motion for issue and terminating sanctions fails for the most part, monetary sanctions will not be awarded. The parties are encouraged to meet and confer to resolve their disputes. The prior history and animosity should be put aside to obtain the discovery and move forward.

In light of the foregoing, the Court DENIES Plaintiff’s request for issue, evidentiary, and monetary sanctions. The Court also orders Defendant to produce the remaining PMK witnesses for deposition within 10 days, and while objections can be raised at the deposition, Defendant is to produce the responsive deponent per category to avoid “individual capacity” objections.

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 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.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] Notably, the Court’s October 3, 2022, does not preclude the Defendant from making objections. The order requires Defendant to produce a PMK on the listed categories. The source of frustration lies in the Defendant’s production of multiple persons without properly organizing the responsive categories resulting in overlapping questioning and objections to questions beyond the designated category for the individuals presented. Nonetheless, the witnesses answered the questions.