Judge: Latrice A. G. Byrdsong, Case: 22STLC02059, Date: 2023-12-27 Tentative Ruling
Case Number: 22STLC02059 Hearing Date: March 20, 2024 Dept: 25
Hearing Date: Wednesday, March 20, 2024
Case Name: CREDITORS
ADJUSTMENT BUREAU, INC v. CONSTRUCTION SERVICING CENTER, INC. AKA CONSTRUCTION
SERVICING CENTER INC AKA CONSTRUCTION SERVICING CTR INC DBA SUNUSO ENERGY ADBA
SOLAR SERVICING ABDA SERVICING CENTER INC; and DOES 1 through 10, inclusive
Case No.: 22STLC02059
Moving Party: Plaintiff
Creditors Adjustment Bureau, Inc.
Responding Party: None
Notice: OK
Tentative Ruling: Plaintiff’s Motion for
Terminating Sanctions, Striking Defendant’s Answer is GRANTED. Defendant’s Answer, filed on August 22, 2022,
is HEREBY STRICKEN.
Plaintiff
may file a request for entry of default.
Plaintiff’s
request for further monetary sanctions is DENIED.
The
Court sets an Order to Show Cause Re: Entry of Default/Default Judgment for MAY
20, 2024 at 9:30AM in Department 25 of the Spring Street Courthouse.
The Trial
set for 09/10/2024 is advanced to this date and hereby taken off
calendar/vacated.
SERVICE:
[ ] Proof of Service Timely Filed (CRC,
rule 3.1300) OK
[ ] Correct Address (CCP §§ 1013, 1013a) OK
[ ] 16/21 Court Days Lapsed (CCP §§ 12c,
1005(b)) OK
OPPOSITION: None filed as of March 07, 2024 [ ] Late [X] None
REPLY: None filed as of March 13, 2024 [ ] Late [X] None
BACKGROUND
On March
29, 2022, Creditors Adjustment Bureau, Inc. (“Plaintiff”) filed this action for
breach of contract and common counts against Construction Servicing Center,
Inc. aka Construction Servicing Center Inc aka Construction Servicing Ctr Inc.
dba Sunuso Energy adba Solar Servicing adba Servicing Center Inc (“Defendant”).
Defendant
filed an answer on August 22, 2022.
On October
25, 2023, Plaintiff filed a (1) Motion for Order Compelling Further Responses
to Special Interrogatories, Set One, and Request for Sanctions; and (2) Motion
for Order Compelling Further Responses to Requests for Production, Set One, and
Request for Sanctions against Defendant. Defendant filed in opposition on
November 13, 2023, and Plaintiff replied on November 15, 2023. The Court
granted both motions on December 27, 2023, and ordered Defendant to serve code
complaint and verified responses to Plaintiff within twenty (20) days. The Court
additionally issued sanctions against Defendant for $2,120.00.
On December
04, 2023, Defendant’s counsel Lawrence C. Ecoff, Esq. (“Counsel”) filed a Motion
to be Relieved as Counsel for Defendant. The Court granted counsel’s request to
be relieved on February 14, 2024.
On January
29, 2024, Plaintiff filed the instant Motion for Order for Terminating
Sanctions, Striking Defendant’s Answer and Entering Default, and Request for
Monetary Sanctions against Defendant.
No
opposition has been filed.
MOVING PARTY
POSITION
Plaintiff prays for the Court to issue an order for
terminating sanctions, striking Defendant’s Answer and for entry of default
against Defendant for failure to obey the Court’s prior discovery orders under CCP
§§ 2030.290(c), 2031.320(c), and 2023.030(d). Plaintiff asserts that Defendant’s
failure to provide responses to Plaintiff s First Request for Production
of Documents and to Plaintiff's First Set of Special Interrogatories as ordered
by this Court constitute a misuse
of the discovery process. Plaintiff additionally requests that sanctions be
entered against the Defendant in the amount of $1,561.65.
OPPOSITION
No
opposition has been filed.
REPLY
No reply
has been filed.
ANALYSIS
I. Legal
Standard
Where a party willfully disobeys a discovery order, courts
have discretion to impose terminating, issue, evidence, or monetary
sanctions. (Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S.
Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)
Code of Civil Procedure § 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 of 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 of Civ. Proc. §
2030.030(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 of Civ. Proc. § 2030.030(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 of Civ. Proc. § 2030.030(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 of Civ. Proc. § 2030.030(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.)
II. Discussion
Plaintiff moves for terminating sanctions,
striking Defendant’s Answer to the Complaint, for default to be entered against
Defendant, and for monetary sanctions in the amount of $1,561.65 for expenses
incurred in bringing the instant Motion. (Mot. p. 2.) Plaintiff argues that
sanctions are appropriate because Defendant has failed to respond to its First
Request for Production of Documents and First Set of Special Interrogatories,
even after the Court ordered Defendant to provide Plaintiff with full,
complete, and objection free responses on December 27, 2023. (Id. p.
3-5)
Plaintiff provides the Court with the
declaration of its Counsel who states that on December 27, 2023, the Court
ordered Defendant to provide Plaintiff with full, complete, and
objection free responses on December 27, 2023. (Tiffanie Brown Decl. ¶ 3.) Counsel
avers that Plaintiff served Defendant with a Notice of Ruling on December 28,
2023. (Id. ¶ 4.) Counsel further declares that Defendant has not complied
with any aspect of the Court’s order. Thus, the Court finds that Defendant has
not complied with the Court’s order. Plaintiff
argues that because of Defendant’s obstinance in responding to Plaintiff’s
discovery request, Defendant has obstructed Plaintiff’s efforts to prosecute
this action and has interfered with the Court’s mission of seeking truth and
justice. (Mot. p. 5.)
Plaintiff seeks $1,561.65 in monetary sanctions for three (3)
hours of attorney time working on the motion at a rate of $500.00 per hour. (Brown
Decl. ¶ 5.) Plaintiff also seeks
$61.65 in costs, for a total of $1,561.65 in sanctions. (Id.)
The Court notes that since filing its Answer
on August 22, 2022, Defendant has not responded to Plaintiff’s discovery
requests, motions to compel discovery, or the instant motion for terminating sanctions.
The Court additionally notes that it previously relieved Defendant’s former
counsel based on a breakdown of the attorney-client relationship. (See 02/14/24
Minute Order.) It appears that the Defendant has willfully abandoned this
litigation. Although terminating sanctions are a harsh penalty, the history in
the instant case demonstrates that Defendant is unwilling to comply with Plaintiff’s
requests or the Court’s orders and thus, lesser sanctions have not been
effective in producing compliance. Here, Defendant has not filed any opposition
to this Motion to argue why its failure to engage in discovery was due to an inability
to comply or otherwise as opposed to bad faith.
For these reasons, the Court finds an
order striking Defendant’s Answer to be appropriate. Defendant’s
Answer is HEREBY STRICKEN. Plaintiff may separately move for default to be
entered against Defendant.
However, the Court declines to award
further monetary sanctions as doing so would be futile in producing compliance.
III. Conclusion
Plaintiff’s Motion for Terminating
Sanctions, Striking Defendant’s Answer is GRANTED. Defendant’s Answer, filed on August 22, 2022,
is HEREBY STRICKEN.
Plaintiff may file a request for entry of
default. However, Plaintiff’s request for further monetary sanctions is DENIED.
The Court sets an Order to Show Cause Re:
Entry of Default/Default Judgment for MAY 20, 2024 at 9:30AM in Department 25 of
the Spring Street Courthouse.
The Trial set for 09/10/2024 is advanced
to this date and hereby taken off calendar/vacated.
Moving party is ordered to give
notice.