Judge Latrice A. G. Byrdsong, Case Number: 22STLC07702, Date: 2023-12-18 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 22STLC07702, Date: 2023-12-18 Tentative Ruling

Case Number: 22STLC07702 Hearing Date: December 18, 2023 Dept: 25

Hearing Date: Monday, December 18, 2023

Case Name: Farmers Specialty Insurance Company v. Thomas Steven Baird, Ann Marie Blair, and Does 1 through 30

Case No.: 22STLC07702

Motion: Plaintiff’s Motion to Strike Answer and Request for Terminating Sanctions and Monetary Sanctions Against Defendant Thomas Steven Baird

Moving Party: Plaintiff Farmers Specialty Insurance Company

Responding Party: Defendant Thomas Steven Baird

Notice: OK

Tentative Ruling: Plaintiff’s Motion to Strike Answer Filed by Defendant

Thomas Steven Baird on 01/10/2023, Request for Entry of Default and Request for

Monetary Sanctions Against Defendant Thomas Steven Baird is GRANTED in part and

DENIED in part.

The Answer filed by Defendant Thomas Steven Baird on 01/10/2023 is

STRICKEN and Default is entered.

The Court DENIES Plaintiff’s request for monetary sanctions.

BACKGROUND

On November 15, 2022, Plaintiff Farmers Specialty Insurance Company (“Plaintiff”) filed an action against Defendants Thomas Steven Baird (“Thomas”), Ann Marie Baird (“Ann Marie”), and Does 1 through 30 (collectively “Defendants”) for subrogation arising from an alleged automobile accident.

On July 11, 2023, Plaintiff successfully brought motions compelling verified answers to Form Interrogatories and Demand for Production of Documents. (Minute Order Dated 07/11/23; Dec. Sarrail ¶2.) Defendant Thomas has failed to provide verified answers to interrogatories or demand for production of documents. (Id. at ¶3.)

On February 2, 2023, Plaintiffa served Thomas with form interrogatories, requests for admissions, and requests for production. (Opposition p. 2.)

On March 3, 2023, Defendant’s counsel served unverified responses because they could not locate Defendant Thomas. (Id.)

As of December 5, 2023, Defendant’s counsel has been unable to locate Defendant Thomas despite hiring a private investigator. (Dec. Kahen ¶2.)

On October 20, 2023, Plaintiff filed the instant Motion to Strike Answer and Request for Monetary Sanctions against Defendant Thomas.

MOVING PARTY POSITION

Plaintiff contends that Defendant Thomas has failed to comply with the Court’s July 11, 2023 order by failing to provide verified responses to Interrogatories and Demand for Production of Documents within 10 days of the order. (Dec. Sarrail at ¶2-3.) Therefore, Plaintiff contends that it is unable to prepare for trial because of Thomas’ failure to comply with his discovery obligations. (Plaintiff’s Reply p.2.) Plaintiff seeks an order from the Court striking Defendant Thomas’ Answer to the Complaint and monetary sanctions in the amount of $375.00 against Defendant Thoma.

OPPOSITION

On December 5, 2023, Defendant Thomas’ counsel filed an opposition. Counsel argues that this motion should be denied because Defendant Thomas is unaware of the discovery or the present motion. (Dec. Kahen ¶2; Opposition p.3.) Moreover, Defendant Thomas’ counsel argues that additional monetary sanctions are also unjust because Defendant Thomas is unaware of this motion or the prior motion as he has not been located. (Id.; Opposition p. 4.) Additionally, Defendant’s counsel argues that the proposed order also requests sanctions against Thomas’ counsel, but the actual motion fails to indicate that such sanctions are to be joint and several. (Opposition p.4.)

REPLY

On December 6, 2023, Plaintiff filed a reply. Plaintiff argues that the Defendant’s counsel failed to offer any case law or authority justifying why Thomas’ Answer should not be stricken. (Opposition p.2.)

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).)

“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.” Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 261 (citations omitted).

1. Analysis

Here, the Court finds that striking the Answer of Defendant Thomas is appropriate because of his failure to comply with his discovery obligations and with the Court’s July 11, 2023 order. (Minute Order Dated 07/11/23; Dec. Sarrail ¶2-3.) Although Defendant’s counsel submitted responses on March 3, 2023, they were unverified responses because they could not locate Defendant Thomas. (Opposition p.2.) Moreover, Defendant’s counsel has still been unable to locate Defendant Thomas with a private investigator. (Dec. Kahen ¶2.) Defendant Thomas has not participated in his case since March 3, 3023. (Opposition p.2.) Thus, Defendant Thomas has failed to comply with his discovery obligations. (Id.)

Accordingly, the Court GRANTS Plaintiff’s motion by striking the Answer of Defendant Thomas.

With respect to monetary sanctions in the amount of $375.00, 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 Thomas has engaged in misuse of the discovery process because of his failure to respond to discovery, the Court finds striking Thomas’ Answer to the Complaint against him to be sufficient here. (Dec. Kahen ¶2.) Moreover, Plaintiff failed to show that the Defendant’s counsel advised the Defendant’s conduct and failed to include the “joint and several” language when seeking sanctions. (Opposition p.4; Reply p.2-3.) Therefore, sanctions against Defendant’s counsel also fail.

III. Conclusion

The Court GRANTS Plaintiff’s motion by striking the 01/10/2023 Answer of Defendant Thomas and entering default. The Court DENIES Plaintiff’s request for monetary sanctions.

The Moving Party is ordered to give notice.