Judge Latrice A. G. Byrdsong, Case Number: 22STLC06584, Date: 2023-10-17 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 22STLC06584, Date: 2023-10-17 Tentative Ruling

Case Name: HUMBERTO CASTILLO MARISCAL; CRISTINA GONZALEZ v. ANGEL RODRIGUEZ; VIOLETA RODRIGUEZ; JOSE SALVADOR ORTEGA; and DOES 1-20

Recommended Ruling: Plaintiffs’ Motion for Terminating Sanctions is DENIED WITHOUT PREJUDICE.

On October 6, 2022, Plaintiffs Humberto Castillo Mariscal (“Plaintiff Humberto”) and Cristina Gonzalez (collectively, “Plaintiffs”) filed a complaint against Defendants Angel Rodriguez (“Defendant Angel”), Violeta Rodriguez (“Defendant Violeta”)[1], Jose Salvador Ortega, and Does 1 to 20 alleging causes of action for (1) motor vehicle and (2) motor vehicle. The complaint arises from the alleged motor vehicle accident that occurred on November 28, 2021.

On February 8, 2023, Plaintiff Humberto filed a motion to compel Defendant Angel’s verified responses to Plaintiff Humberto’s Form Interrogatories, Set Number One, and monetary sanctions in the amount of $1,560.00 against Defendant Angel and his counsel of record, Chavez Legal Group by Mehrdod Khavari Rahat Abadi, Esq. On February 8, 2023, Plaintiff Humberto filed a motion to compel Defendant Violeta’s verified responses to Plaintiff Humberto’s Form Interrogatories, Set Number One, and for monetary sanctions in the sum of $1,560.00 against Defendant Violeta and her counsel of record, Chavez Legal Group by Mehrdod Khavari Rahat Abadi, Esq.

On February 9, 2023, Plaintiff Humberto filed a motion to compel Defendant Angel to provide a verified response to Set One of Plaintiff Humberto’s Production Demand, and for monetary sanctions against Defendant Angel and his counsel of record, Chavez Legal Group by Mehrdod Khavari Rahat Abadi, Esq. in the amount of $1,560.00.

On March 27, 2023, the Court granted the motions to compel filed by Plaintiff Humberto as to Defendant Angel and Defendant Violeta. As to Defendant Angel, the Court ordered Defendant Angel to: (1) provide properly verified responses to all Form Interrogatories, Set One and to specifically submit further responses to Form Interrogatories Nos. 112.1, 112.4, 112.5, and 120.4 within 15 days’ notice of the court order and ordered Defendant Angel and his counsel of record to pay sanctions to Plaintiff Humberto in the amount of $960.00 by April 26, 2023; and (2) provide properly verified responses to Plaintiff Humberto’s Demand for Production within 15 days’ notice of the court order and ordered Defendant Angel and his counsel to pay sanctions in the sum of $660.00 to Plaintiff Humberto by April 26, 2023.

The Court ordered Defendant Violeta to provide properly verified responses to Set One of Plaintiff Humberto’s Form Interrogatories within 15 days’ notice of the court order. (March 27, 2023 Minute Order.) As to Plaintiff Humberto’s motion to compel responses to Form Interrogatories from Defendant Violeta, the Court ordered Defendant Violeta and her counsel to pay Plaintiff Humberto the sum of $660.00 in monetary sanctions by April 26, 2023. (Id.)

On April 21, 2023, Plaintiff Humberto filed a motion for terminating sanctions against Defendants on the ground that Defendants failed to comply with the Court’s March 27, 2023 order to provide responses, and failed to pay the monetary sanctions ordered by the Court. The motion also sought monetary sanctions in the amount of $1,560.00 against Defendants and their counsel.

On July 5, 2023, the Court, without a hearing due to the submission of the parties, adopted its tentative order on Plaintiff Humberto’s motion for terminating sanctions. The Court denied Plaintiff Humberto’s motion for terminating sanctions; however, the Court ordered Defendants to comply with the Court’s March 27, 2023 order forthwith. The Court ordered that Defendants and their counsel, Mehrdod Khavari Rahat Abadi, pay sanctions in the sum of $1,260.00 to the Law Offices of Donald T. Dunham & Associates by July 25, 2023. (July 5, 2023 Minute Order.) On July 6, 2023, Plaintiffs filed and served Notice of Ruling as to the Court’s order on the motion for terminating sanctions.

On August 3, 2023, Plaintiffs filed and served a motion for terminating sanctions (the “Motion”) on the grounds that Defendants have failed to comply with the Court’s March 27, 2023 and July 5, 2023 orders by providing properly verified responses to the discovery at issue and paying monetary sanctions. Plaintiffs request that the answer of Defendants be stricken due to their failure to provide properly verified discovery responses pursuant to the Court’s March 27, 2023 and July 5, 2023 orders. In addition to terminating sanctions, Plaintiffs request monetary sanctions in the amount of $1,560.00 against Defendants and their counsel of record, Martinez, Dieterich & Zarcone Legal Group by Thomas J. Ross, Esq. Defendants did not file an opposition to the Motion. Any opposition to the Motion must have been filed and served at least nine court days prior to the hearing. Code Civ. Proc. § 1005(b).

Plaintiffs assert that the Court may issue an order for terminating sanctions for failure to obey the orders of the Court. Plaintiffs also contend that: (1) the Court has ordered the parties to provide a verified response to the discovery; (2) certification of the verification requires strict compliance with California Code of Civil Procedure section 2015.5; and (3) monetary sanctions should be awarded.

Code Civ. Proc. § 2030.290(c) provides that where “a party fails to obey an order compelling answers [to interrogatories], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . and the court may impose a monetary sanction.” Where a party fails to comply with a court order compelling responses to a demand for production of documents, the court “may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . [and] the court may impose a monetary sanction.” Code Civ. Proc. § 2031.300(c).

“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. “Discovery 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.” Ibid. “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” Ibid. Where discovery violations are “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.” Ibid. A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327. Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. Ibid.

“A decision to order terminating sanctions should not be made lightly.” Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702. A trial court’s order to impose terminating sanctions will be reversed only if it “was arbitrary, capricious, or whimsical.” Ibid. “[W]here 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.” Ibid. Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390. Terminating sanctions are warranted when a party’s lack of compliance with the discovery process has caused the opposing party prejudice. Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 989.

California Code of Civil Procedure, Section 2023.030 provides that “[t]he 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.” A misuse of the discovery process “include[s] . . . [d]isobeying a court order to provide discovery.” Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 991.

On November 17, 2022, Plaintiff Humberto served the following discovery on Defendants: (1) Plaintiff Humberto’s Production Demand, Set One and Plaintiff Humberto’s Form Interrogatories, Set One directed to Defendant Angel; and (2) Plaintiff Humberto’s Form Interrogatories, Set One directed to Defendant Violeta. Dunham Decl., ¶ 3. Defendants’ responses to the discovery were improperly verified and Plaintiff Humberto’s counsel sent correspondence to Defendants’ counsel as to the improper verifications. Id. Defendants’ counsel did not respond to the meet and confer correspondence and failed to provide properly verified responses. Id.

Plaintiff Humberto then filed a motion to compel verified responses to Plaintiff Humberto’s Form Interrogatories, Set One as to Defendant Angel and Defendant Violeta. Dunham Decl., ¶ 3. Plaintiff Humberto also filed a motion to compel Defendant Angel’s verified response to Plaintiff’s Humberto’s Production Demand, Set One. Id. At the March 27, 2023 hearing on the motions, the Court ordered Defendants to provide properly verified responses to the discovery at issue within 15 days of notice of ruling. Id. As to Defendant Angel, the Court ordered Defendant Angel to also provide further responses to Plaintiff Humberto’s Form Interrogatories Numbers 112.1, 112.4, 112.5, and 120.4. Id., ¶ 4 and Exhibits 1-2. The Court ordered Defendant Angel, Defendant Violeta, and their counsel of record to pay monetary sanctions. Id.

On July 5, 2023, the Court ordered that Defendants comply with the Court’s March 27, 2023 order and further ordered that Defendants and their counsel pay monetary sanctions in the amount of $1,260.00. Id., ¶ 5. Plaintiffs’ counsel declares that Defendant Angel has not provided a properly verified response to the Production Demand, Set One and has not provided a properly verified response to Set One of the Form Interrogatories or further responses as ordered by the Court. Id. Defendant Violeta also has not provided properly verified responses to Set One of the Form Interrogatories as ordered by the Court. Id. Moreover, no monetary sanctions have been paid pursuant to the Court’s March 27, 2023 and July 5, 2023 orders. Id. Plaintiffs assert that Plaintiff Humberto requires properly verified responses to discovery to adequately and effectively prepare for trial. Id., ¶ 6.

Initially, the Court will address Plaintiffs’ argument that Defendants’ verifications are improper. Defendant Angel’s responses to Plaintiff Humberto’s Production Demand, Set One, and Form Interrogatories, Set One, are not completely verified as Defendant Angel’s verification thereto does not state the date of such verification.[2] Defendant Violeta’s responses to Set One of Plaintiff Humberto’s Form Interrogatories are also not completely verified as the date of execution of the verification is not provided. The purported verifications of Defendant Angel and Defendant Violeta are improper because Code Civ. Proc. § 2015.5 requires that verifications state “the date and place of execution.” The purported verifications are therefore deficient.

The Court does not find that monetary sanctions will compel Defendants’ compliance with this Court’s orders. Defendants and their counsel of record have been ordered to pay monetary sanctions; however, such sanctions have neither been paid nor caused compliance with this Court’s orders.

The Court, however, finds that terminating sanctions are not appropriate at this time. Although Defendants have failed to comply with the Court’s March 27, 2023 and July 5, 2023 orders, the Court must take an incremental approach to discovery sanctions pursuant to Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992. While an evidentiary or issue sanction might have been appropriate as an alternative to terminating sanctions, Plaintiffs did not request an evidentiary or issue sanction. Also, the declaration of Plaintiffs’ counsel in support of the motion does not state that Defendants’ non-compliance with this Court’s orders was willful.

In addition to terminating sanctions, Plaintiffs seek monetary sanctions for filing the instant Motion in the amount of $1,560.00, which represents: three (3) hours to draft the Motion, one (1) hour to review an opposition and draft a reply, one (1) hour to attend the hearing, at a billing rate of $300.00 per hour plus a filing fee of $60.00. Dunham Decl., ¶ 7. The Court finds that monetary sanctions are appropriate and GRANTS IN PART Plaintiffs’ request for monetary sanctions. The Court finds that monetary sanctions in the reasonable amount of $660.00, representing two hours (2) drafting the motion and the $60.00 filing fee, at the billing rate of $300.00 is appropriate given the lack of opposition to the Motion and the straightforward nature of the Motion.

Plaintiffs’ motion for terminating sanctions is DENIED WITHOUT PREJUDICE. Plaintiffs’ request for monetary sanctions is GRANTED IN PART in the amount of $660.00, to be paid by Defendants and their counsel to Plaintiffs within 20 days of notice of the Court’s order. Moreover, the Court ORDERS Defendants to comply with the Court’s March 27, 2023 and July 5, 2023 orders, in their entirety, within 20 days of notice of the Court’s order. If Defendants fail to comply with the Court’s order by such date or flouts the discovery process in another manner, and Plaintiffs file a motion for evidentiary, issue, or terminating sanctions in the future, the Court will consider issuing evidentiary, issue, and/or terminating sanctions.

[1] Any and all references to “Defendants” below refers to Defendants Angel Rodriguez and Violeta Rodriguez collectively.

[2] On its own motion, the Court takes judicial notice of the discovery responses of Defendant Angel and Defendant Violeta as their responses to Plaintiff Humberto’s discovery were before the Court in connection with Plaintiff Humberto’s motions to compel. Evid. Code § 452(d); see also Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265.