Judge Kerry Bensinger, Case 21STCV37452 2023-01-26 Tentative Ruling

The present action arises from property damage suffered by Esmaralda Y. Fuentes-Perez (“Plaintiff”) following a fire within Plaintiff’s apartment unit. Plaintiff is a resident of 1073 Aileron Avenue, Apartment F, in La Puente, California (“Subject Premises”). In November of 2020, the apartment unit neighboring Plaintiff’s unit, identified as Apartment E, caught fire. The fire ultimately travelled to Plaintiff’s apartment unit, and damaged Plaintiff’s property. Run D. Wu (“Defendant Run Wu”) was the resident of Apartment E, where the fire originated. The owner of the Subject Premises, the whole of the apartment building, is Dan Yuedong Wu (“Defendant Dan Wu”).

On October 8, 2021, Plaintiff commenced the instant action by filing a Complaint against Defendant Run Wu, Defendant Dan Wu, and Does 1 through 100. Plaintiff’s Complaint alleges the following causes of action: (1) Negligence; and (2) Premises Liability.

On June 8, 2022, Defendant Dan Wu filed the following two discovery motions: (1) Motion to Compel Plaintiff’s Responses to Form Interrogatories (Set One) and Special Interrogatories (Set One), and Request for Sanctions; and (2) Motion to Compel Plaintiff’s Responses to Requests for Production of Documents (Set One), and Request for Sanctions (hereinafter, collectively “Discovery Motions”). Defendant Dan Wu’s Discovery Motions were advanced on the ground Plaintiff failed to serve a timely response to the above-identified discovery, despite having been properly served with the same.

On June 1, 2022, John F. Bazan of Bazan Huerta & Associates (“Mr. Bazan”) filed a Motion To Be Relieved as Counsel, moving for an Order relieving Mr. Bazan as counsel of record for Plaintiff.

On August 24, 2022, Defendant Dan Wu’s Discovery Motions came before the Court for hearing. The Court concluded Defendant Dan Wu properly served Plaintiff with Defendant’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production of Documents (Set One), and further found Plaintiff had failed to serve a timely response to the written discovery propounded, in compliance with the relevant provisions of the Code of Civil Procedure. (Dorr Decl., Ex. E.) Pursuant to the Court’s findings, the Court ordered Plaintiff to serve verified responses without objections to Defendant Dan Wu’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production of Documents (Set One), within thirty (30) days of the Court’s Order. (Ibid.)

On August 31, 2022, Mr. Bazan’s Motion To Be Relieved as Counsel came before the Court for hearing, and was granted by this Court. Plaintiff presently proceeds in propria persona.

On December 13, 2022, Defendant Dan Wu filed the present Motion for Issue and Evidentiary Sanctions Against Plaintiff, and Request for Monetary Sanctions of $800. The Court observes Plaintiff has not submitted an Opposition to Defendant Dan Wu’s Motion for Issue and Evidentiary Sanctions Against Plaintiff, and Request for Monetary Sanctions of $800.

Code of Civil Procedure section 2023.030 authorizes the issuance of terminating, evidentiary, issue, and monetary sanctions, in the event a party participates in an activity which constitutes a “misuse of the discovery process”. (Code Civ. Proc., § 2023.030.) Specifically, Code of Civil Procedure section 2023.030 provides as follows:

To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

(a) The court may impose a monetary sanction 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(b) The court may impose an issue sanction 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.

(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

(d) The court may impose a terminating sanction by [entering] one of [four expressly enumerated] orders[.]

Code of Civil Procedure section 2023.010 identifies activities which constitute a “misuse of the discovery process”, and may warrant the imposition of sanctions. (Code Civ. Proc., § 2023.010.) Code of Civil Procedure section 2023.010 states,

Misuses of the discovery process include, but are not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

Defendant Dan Wu (hereinafter, “Defendant”) moves for an Order imposing evidentiary and issue sanctions against Plaintiff, on the ground Plaintiff has engaged in conduct constituting a “misuse of the discovery process”, pursuant to Code of Civil Procedure sections 2023.030 and 2023.010. (Code Civ. Proc., §§ 2023.010, 2023.030.) Defendant specifies, as stated within Plaintiff’s operative Complaint, Plaintiff alleges the property damage suffered as a result of the subject apartment fire was caused by Defendant’s negligent maintenance of the Subject Premises. Despite having the opportunity to present evidence of Defendant’s alleged negligence, by responding to Defendant’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production of Documents (Set One), Plaintiff has failed to present evidence explaining the aforementioned allegations. Defendant contends Plaintiff’s failure to provide a response to Defendant’s written discovery, despite a Court Order requiring Plaintiff’s response, constitutes a “misuse of the discovery process”, and warrants the issuance of issue sanctions by way of preventing Plaintiff from presenting any evidence regarding whether Defendant was negligent or maintained the Subject Premises in an unsafe manner. (Mot., at p. 4:22-25.) Defendant, additionally, requests that this Court issue monetary sanctions as a result of Plaintiff’s “misuse of the discovery process”, in an amount of $800.00. (Id., at pp. 5:24-6:5.)

Following review of Defendant’s moving arguments and submitted evidence, the Court concludes Plaintiff has engaged in repeated “misuse[s] of the discovery process”, and accordingly, issue sanctions and monetary sanctions may be appropriately issued against Plaintiff, pursuant to Code of Civil Procedure sections 2023.030 and 2023.010. (Code Civ. Proc., §§ 2023.010, 2023.030.) Initially, the Court observes Plaintiff has engaged in the “misuse of the discovery process” by “[f]ailing to respond . . . to an authorized method of discovery”. (Code Civ. Proc., § 2023.010, subd. (d).) The evidence submitted by Defendant demonstrates, on approximately February 3, 2022, Plaintiff was properly served with Defendant’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production of Documents (Set One), and failed to respond the aforementioned authorized methods of discovery. (Dorr Decl., ¶ 7, Exs. A, B, C.) Furthermore, the Court observes Plaintiff, once again, engaged in the “misuse of the discovery process” by “[d]isobeying a court order to provide discovery.”¿ (Code Civ. Proc., § 2023.010, subd. (g).) As a result of Plaintiff’s failure to respond to Defendant’s written discovery, Defendant was prompted to file two (2) Discovery Motions, seeking an Order compelling Plaintiff’s responses to Defendant’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One). (Dorr Decl., ¶ 11.) Subsequently, following consideration of Defendant’s Discovery Motions, the Court granted Defendant’s Discovery Motions and ordered Plaintiff “to serve verified responses without objections to Defendant Dan Yuedong Wu’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One within thirty (30) days of the date of this order[,]” and to pay monetary sanctions equal to $370.00. (Dorr Decl., ¶¶ 13-14, Ex. E.) The evidence demonstrates Plaintiff has failed to comply with the Court’s Order, and have yet to provide any responses to the aforementioned discovery or pay the monetary sanctions issued. (Dorr Decl., ¶ 15 [“Plaintiff did not provide any written discovery responses or pay sanctions following the Court’s order.”].)

The Court concludes issue sanctions constitute an appropriate sanction as a result of Plaintiff’s repeated “misuse[s] of the discovery process”, considering the issuance of monetary sanctions, alone, has proven insufficient to correct Plaintiff’s conduct. As noted in the preceding paragraph, in conjunction with the Court’s Order compelling Plaintiff’s response to Defendant’s written discovery, the Court issued monetary sanctions, which remain unpaid and which were ineffective in propelling Plaintiff’s responses to Defendant’s written discovery. (Dorr Decl., ¶¶ 13-15.) Therefore, further sanctions are warranted in the present case. Additionally, the Court notes notwithstanding all of the foregoing, Plaintiff fails to respond and/or oppose Defendant’s request for issue sanctions, despite having been served with the present Motion. (Mot., at p. 3-4 [Proof of Service].) The Court is aware that issue and evidentiary sanctions are harsh penalties but given the foregoing repeated discovery violations, Plaintiff’s abusive conduct leaves the Court with few options.

Accordingly, the Court imposes an issue sanction against Plaintiff as a result of Plaintiff’s repeated “misuse[s] of the discovery process” by way of preventing Plaintiff from presenting any evidence regarding whether Defendant was negligent or maintained the Subject Premises in an unsafe manner. The Court, additionally, finds appropriate the issuance of a monetary sanction in conjunction with the issue sanction described above. The Court, thereby, issues a monetary sanction against Plaintiff in the sum of $460 ($200.00 hourly rate multiplied by 2 hours preparing motion and appearing for hearing, plus $60.00 filing fee). (Dorr Decl., ¶ 18.)

Defendant Dan Wu’s Motion for Issue and Evidentiary Sanctions Against Plaintiff, and Request for Monetary Sanctions of $800 is GRANTED.

The Court issues an issue sanction preventing Plaintiff from presenting any evidence regarding whether Defendant was negligent or maintained the Subject Premises in an unsafe manner.

The Court issues a monetary sanction against Plaintiff in the sum of $460.00. Plaintiff is ordered to pay the monetary sanction within thirty (30) days of notice of this Court’s Order.

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