Judge Kerry Bensinger, Case Number: 22STCV31358, Date: 2023-12-15 Tentative Ruling

On September 26, 2022, Plaintiff, Fermin Garcia, filed this action against Defendants, Quik Tow, LLC (Quik Tow or Defendant) and Ignacio Gonzalez, for wage and hour violations.

On November 14, 2022, Plaintiff served Quik Tow with Plaintiff’s First Set of discovery, including Form Interrogatories – Employment Law (“Employment Interrogatories”). Quik Tow did not serve responses.

On June 22, 2023, the court granted Plaintiff’s motion to compel responses to the Employment Interrogatories.

On December 22, 2023, the court granted Plaintiff’s motion to compel further responses to the employment Interrogatories. The court ordered Quik Tow to provide further responses within 20 days. Thereafter, Quik Tow served untimely further responses which were still deficient. The parties met and conferred. Quik Tow agreed to provide further responses and requested several extensions to respond. Plaintiff granted the extensions.

On March 14, 2024, having not received Quik Tow’s responses to the Employment Interrogatories, Plaintiff filed this motion for an order imposing issue and evidentiary sanctions against Quik Tow. Plaintiff requests monetary sanctions against Quik Tow and its counsel.

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

Code of Civil Procedure section 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 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 Civ. Proc., § 2030.030, subd. (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 Civ. Proc., § 2030.030, subd. (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 Civ. Proc., § 2030.030, subd.(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 Civ. Proc., § 2030.030, subd. (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.)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary 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.”¿ (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.310, subd. (h).)¿¿¿¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

1. Taking as established that Plaintiff was an employee (and not an independent contractor) of Defendant QUIK TOW LLC.

2. Taking as established that Plaintiff was not compensated overtime wages in violation of California Labor Code section 510.

3. Taking as established that Plaintiff was not provided with meal or rest breaks in violation of California Labor Code sections 226.7 and 512.

4. Taking as established that Plaintiff was not compensated with any meal or rest period premiums for missed meal or rest breaks.

5. Taking as established that Plaintiff was not provided with itemized, accurate wage statements in violation of California Labor Code sections 226.

1. Prohibiting QUIK TOW LLC from entering any evidence in any form attempting to dispute that Plaintiff was an employee and argue that Plaintiff was an independent contractor.

2. Prohibiting Defendant from introducing any evidence in any form to dispute that Plaintiff was not provided with accurate, itemized, wage statements compliant with Labor Code 226.

3. Prohibiting Defendant from entering any evidence in any form to dispute that Plaintiff was not provided with meal breaks compliant with California Labor Code 226.7 and 512.

4. Prohibiting Defendant from entering any evidence in any form to dispute that Plaintiff was not provided with rest breaks compliant with California Labor Code 226.7 and 512.

5. Prohibiting Defendant from entering any evidence in any form to dispute that Plaintiff was not compensated for overtime wages.

6. Prohibiting Defendant from entering any evidence in any form to dispute that Plaintiff was not compensated his final wages upon termination.

Plaintiff argues the sanctions are proper because Quik Tow has repeatedly violated this court’s orders directing Quik Tow to engage in discovery.

In an opposition spanning seven lines and without any discussion of merits of the issue and evidentiary sanction, Quik Tow argues the motion is moot because it has responded to the relevant discovery. Quick tow refers to extenuating circumstances but does not explain what the extenuating circumstances are. A non-compliant client is not an extenuating circumstance.

Plaintiff has not filed a reply. The court will hear from counsel. Quik Tow does not dispute Plaintiff’s assertion that Quik has failed to engage in the discovery process, repeatedly violated this court’s orders directing Quik Tow to respond to Plaintiff’s discovery, and failed to provide timely responses even after being granted multiple extensions to respond. The court also notes that Quik Tow does not provide any support for the assertion that it has provided further responses to Plaintiff’s Employment Interrogatories. Based on the foregoing, imposition of the requested issue and evidentiary sanctions may be warranted, but the court must first hear from counsel regarding Quick Tow’s production.

Plaintiff requests sanctions against Quik Tow and its counsel in the sum of $15,000. The court will hear from counsel.

Kerry Bensinger

Judge of the Superior Court