Judge Kerry Bensinger, Case Number: 23STCV08662, Date: 2024-11-07 Tentative Ruling

MOTION TO COMPEL COMPLIANCE WITH NOVEMBER 30, 2023 ORDER AND REQUEST FOR MONETARY SANCTIONS

On October 31, 2023, Plaintiff, A. U. C., filed a motion to compel Defendant, Aroldo Marroquin, to provide responses to Plaintiff’s Requests for Production of Documents, Set One. While the motion was pending, Defendant served responses which included objections. Neither party apprised the court that responses had been served.

On November 30, 2023, the court granted Plaintiff’s motion to compel. The court ordered Defendant to provide objection-free responses within 30 days of the date of the court’s order. Thereafter, Plaintiff inquired as to whether Defendant would be providing objection-free responses. Defendant has not provided supplemental responses.

On April 15, 2024, Plaintiff filed this motion to compel Defendant to comply with the court’s November 30, 2023 order. Alternatively, Plaintiff requested terminating sanctions in the form of striking Defendant’s answer and entering an order rendering a judgment by default. Plaintiff also requested monetary sanctions against Defendant.

The motion was heard on May 9, 2024. The court issued a tentative ruling denying Plaintiff’s motion because Defendant served responses before the hearing for Plaintiff’s motion to compel on November 30, 2023. After oral argument, the court continued the hearing and ordered supplemental briefing.

The motion was heard on August 21, 2024. The court issued another tentative ruling directing supplemental briefing on the third-party privacy concerns raised by Defendant.

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: . . . (B) The party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).) “If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010)(emphasis added). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc. § 2031.320, subd. (c).)

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.¿¿¿

In the court’s tentative ruling, issued in advance of the May 9, 2024 hearing, the court was inclined to deny Plaintiff’s motion because Defendant served responses to Plaintiff’s discovery requests on November 13, 2023. Neither party notified the court that defense counsel had prepared and served responses.[1] As such, the court explained in that tentative ruling that, because Defendant had already complied, albeit prior to the issuance of the court’s November 30, 2023, ruling, Plaintiff’s recourse was to compel a further response. Construed as a motion to compel further, the court stated that Plaintiff’s motion was untimely because 45 days had passed since Defendant served the responses. The court did not adopt that ruling and ordered additional briefing.

Notably, Plaintiff’s motion seeks terminating sanctions. A terminating sanction is a “drastic measure which should be employed with caution.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 772, 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, supra, 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].)

Such a remedy is not appropriate here for a variety of reasons: Defendant served responses with objections. Defendant has not abandoned the case. While Defendant did not comply with the court’s November 30, 2023, order, Defendant raised legitimate third-party privacy concerns; concerns which were unknown to the court when it issued the November 30, 2023, order. True, Defendant did not bring a motion for reconsideration or a motion to request leave to raise objections. Nonetheless, these failures do not support a request for terminating sanctions.

No other remedy (other than terminating sanctions) is sought by Plaintiff. Plaintiff did not move for issue or evidentiary sanctions and has not made the requisite showing for such relief. A motion for another order to compel Defendant to comply is redundant.

After the August 21, 2024, hearing, the court directed the parties to brief (1) whether documents showing violations of the ICA as to other customers are material and relevant to Plaintiff’s case, and (2) whether any limits should be imposed on the discovery, temporal or to assuage privacy interests.

Plaintiff argues he is “entitled to conduct discovery to determine the full extent of Defendant’s violations of the ICA, as to any customer of the Defendant, in order to discover evidence to support Plaintiff’s burden of proof as to the entitlement to injunctive relief on behalf of the general public and for statutory damages of $1,000 per violation.” (Motion, p. 4:9-12.)[2]

(a) A person claiming to be aggrieved by a violation of this chapter by an immigration consultant may bring a civil action for injunctive relief or damages, or both. If the court finds that the defendant has violated a provision of this chapter, it shall award actual damages, plus an amount equal to treble the amount of actual damages or one thousand dollars ($1,000) per violation, whichever is greater. The court shall also grant a prevailing plaintiff reasonable attorneys' fees and costs.

(b) Any other party who, upon information and belief, claims a violation of this chapter has been committed by an immigration consultant may bring a civil action for injunctive relief on behalf of the general public and, upon prevailing, shall recover reasonable attorneys' fees and costs.

Based upon the foregoing statutory language there is a difference between an aggrieved person and “any other party.” The remedies are different as well. A person bringing the action on behalf of the general public is not an aggrieved party but rather a “non-aggrieved” party who, upon information and belief, believes an immigration consultant has violated the Business and Professions Code sections 22440, et seq.

Here, Plaintiff brings this action as an aggrieved party. (See Complaint, ¶ 22.) Discovery into Defendant’s alleged violations of the ICA is therefore limited to Plaintiff’s individual claims.

[1] Plaintiff argues that Defendant’s opposition to the motion to compel (re: inspection demands), filed on November 13, 2023, apprised the court that Defendant had served responses. Not so. Defendant’s opposition—at least the one filed with the court—omits any indication that discovery responses were served or prepared. Plaintiff submits a copy of Defendant’s opposition which indicates that Defense Counsel had “prepared” responses. It appears Defendant served two different oppositions. In any event, both oppositions fail to state that responses were served. “Prepared”, without more, does not mean “served”.

[2] Central to Plaintiff’s argument is his contention that the ICA is a qui tam action and Plaintiff is a qui tam plaintiff. The ICA, however, is not a qui tam action. A qui tam action is “ ‘[a]n action brought under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.’” (People ex rel. Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 538 [quoting Black’s Law Dict. (7th ed.1999) p. 1262, col. 1], emphasis added.) “Under California law, a qui tam action is brought on behalf of the People of the State of California, and the People are the real party in interest.” (People ex rel. Strathmann v. Acacia Rsch. Corp. (2012) 210 Cal.App.4th 487, 492 (cleaned up).) In short, a qui tam action is an action brought under a statute which (1) allows a private individual to share a portion of any recovered civil penalty with the government, and (2) allows a private individual to represent the interests of the People of California. Here, although the ICA allows a private person to sue for a civil penalty (see Bus. & Prof. Code, § 22446.5(a)), the ICA does not require any portion of the penalty to be paid to the government or some specified public institution. Each of the qui tam statutes mentioned above—the False Claims Act, PAGA, the Insurance Frauds Prevention Act, and Proposition 65—expressly provide for portions of the proceeds of the case to be deposited with the government. (See Gov. Code, § 12652, subd. (g) [setting forth various amounts of the proceeds of the action or settlement of the claim that is to be received by the state]; Lab. Code, § 2699, subd. (m) [requiring 65% of recovered civil penalties to be distributed to the Labor and Workforce Development Agency]; Ins. Code, § 1871.1, subd. (g)(1)(A)(iv) [“Those portions of a judgment or settlement not distributed pursuant to this subdivision shall be paid to the General Fund of the state and, upon appropriation by the Legislature, shall be apportioned between the Department of Justice and the Department of Insurance for enhanced fraud investigation and prevention efforts.”]; Health & Saf. Code, § 25249.12, subds. (c), (d) [setting forth the allocation of civil and criminal penalties in a Proposition 65 case to be deposited into the Safe Drinking Water and Toxic Enforcement Fund and enforcement agency, respectively].) By contrast, an ICA plaintiff, if aggrieved, may keep all the civil penalties. (See Bus. & Prof. Code, § 22446.5(a).) Nonetheless, the court finds that Plaintiff is not entitled to the requested discovery on other grounds.