Judge: Latrice A. G. Byrdsong, Case: 22STLC01362, Date: 2023-12-07 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 22STLC01362    Hearing Date: December 7, 2023    Dept: 25

Hearing Date:                         Thursday, December 7, 2023

Case Name:                             ALL LOS ANGELES PAINTING COMPANY, INC., a California corporation v. GARNERO INCORPORATED, a California corporation; NATE GARNERO, an individual; and DOES 1 through 20, inclusive,

Case No.:                                22STLC01362

Motion:                                   Plaintiff’s Motion to Strike Answer and Request for Terminating Sanctions and Monetary Sanctions Against Defendant Nate Garnero

Moving Party:                         Plaintiff All Los Angeles Painting Company, Inc.

Responding Party:                   None

Notice:                                    OK

 

Tentative Ruling:                    Plaintiff’s Motion to Strike Answer and Request for Terminating Sanctions and Monetary Sanctions Against Defendant Nate Garnero is GRANTED in part and DENIED in part.

 

 

BACKGROUND

 

On March 1, 2022, Plaintiff All Los Angeles Painting Company Inc. (“Plaintiff”) filed an action against Defendants Garnero Inc. (“Garnero”) and Nate Garnero (“Nate”) (collectively “Defendants”) for breach of contract, quantum meruit, and common counts.

 

On May 11, 2022, pursuant to Plaintiff’s request, the Court entered default against Defendants. (5-11-22 Request for Entry of Default.) On October 27, 2022, pursuant to the parties’ stipulation, default was vacated, and Defendants were ordered to file responsive pleadings. (10-27-22 Stipulation and Order.) On November 28, 2022, Defendants filed a joint

Answer to the Complaint.

 

On May 8, 2023, Defendants Nate and Garnero filed a Substitution of Attorney indicating that each Defendant was self-represented. In response, Plaintiff filed a Motion to Vacate and Strike Answer and Enter Default of Defendant Garnero. The Court granted the Motion on July 11, 2023, and struck the Answer as to Defendant Garnero. (7-11-23 Minute Order.) On July 18, 2023, pursuant to Plaintiff’s request, the Court entered default against Defendant Garnero. (7-18-23 Request for Entry of Default.)

 

On June 21, 2023, Plaintiff filed Motions to Compel Defendant Nate’s responses to Form Interrogatories (Set One) and Requests for Production of Documents (Set One). Plaintiff also filed a motion to deem Requests for Admissions (Set One) admitted by Defendant Nate. Plaintiff also requested monetary sanctions. On August 17, 2023, the Court granted Plaintiff’s discovery motions and request for monetary sanctions.

 

On September 25, 2023, Plaintiff filed the instant Motion to Strike Answer and Request for Terminating Sanctions and Monetary Sanctions against Defendant Nate Garnero. The motion is unopposed.

 

MOVING PARTY POSITION

 

            Plaintiff contends that Defendant Nate has failed to comply with the Court’s August 17, 2023 order by failing to provide verified responses, without objections, to Form Interrogatories (Set One) and Requests for Production of Documents (Set One) within 10 days of the order, and by failing to pay the corresponding monetary sanctions award within 30 days of the order. Plaintiff contends that it is unable to prepare for trial because of Nate’s repeated failures to comply with his discovery obligations. Plaintiff seeks an order from the Court striking Defendant Nate’s Answer to the Complaint, an entry of default, and monetary sanctions in the amount of $2,415.00 against Nate.

 

OPPOSITION

 

            None.

 

REPLY

 

            None.

ANALYSIS

 

I.          Terminating Sanctions

A.        Legal Standard

The court is authorized, after notice and opportunity for hearing, to impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, and contempt. (Code Civ. Proc., §¿2023.030, subd. (a)-(e).) A terminating sanction may be imposed by an order striking out a pleading of any party engaging in the misuse of the discovery process. (Id., § 2023.030, subd. (d)(3).)  

 

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992; see J.W. v. Watchtower Bible and Tract Society of New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.) If a lesser sanction fails to curb misuse, a greater sanction is warranted. (Doppes, 174 Cal.App.4th at p. 992.) Discovery sanctions should be appropriate to the dereliction, and should not exceed what is required to protect the interests of the party entitled to but denied discovery. (Id.) “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.” (Id. [quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280); Creed-21 v. City of Wildomar¿(2017) 18 Cal.App.5th 690, 702 [quoting same].)  

 

Code of Civil Procedure, section 2023.010, subdivisions (d) and (f) provide that a misuse of the discovery process includes, but is not limited to, “[f]ailing to respond or to submit to an authorized method of discovery” and “[m]aking an evasive response to discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (f).)

 

1.         Analysis

 

            Here, the Court finds that striking the Answer of Defendant Nate and entering default against him is appropriate in light of his repeated failures to comply with his discovery obligations and with the Court’s August 17, 2023 order. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390-392 [upholding trial court’s entry of default as terminating sanctions where party willfully failed to comply with discovery order].) Plaintiff gave notice of the Court’s August 17, 2023 order. (8-22-23 Notice of Ruling.) Plaintiff even served another copy of that order on August 31, 2023. (8-31-23 Notice of Entry of Judgment or Order.) Nevertheless, Nate has failed to comply with his discovery obligations. (Stevenson Decl., ¶ 7.)

 

Moreover, the Court infers from the record that the Defendants are no longer participating in this action. Defendants’ former counsel withdrew from representation on May 8, 2023, leaving Defendant Garnero, a corporation, without legal representation. (5-8-2023 Substitutions of Attorney.) Garnero failed to retain new legal representation, which led to the Court striking Garnero’s Answer to the Complaint on July 11, 2023. (7-11-2023 Minute Order.) Defendants have not opposed Plaintiff’s recent motions and have not appeared at the hearings on those motions either. The Court further construes Defendant Nate’s lack of opposition as additional evidence of lack of participation in this action, and as a tacit admission that Plaintiff’s motion is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.)

 

Accordingly, the Court GRANTS Plaintiff’s motion by striking the Answer of Defendant Nate and entering default against him.

 

With respect to monetary sanctions in the amount of $2,415.00, the Court exercises its discretion and declines to award them. (Code Civ. Proc., § 2023.030, subd. (a).) While the Court agrees the evidence clearly shows Defendant Nate has engaged in misuse of the discovery process, the Court finds striking Nate’s Answer to the Complaint and entering default against him to be sufficient here.

 

III.       Conclusion

           

            The Court GRANTS Plaintiff’s motion to strike the Answer of Defendant Nate and for terminating sanctions by entering default against Defendant Nate. The Court DENIES Plaintiff’s request for monetary sanctions.

Moving Party is ordered to give notice.