Judge Lee S. Arian, Case Number: 20STCV46634, Date: 2024-12-05 Tentative Ruling

CASE NO./NAME: 20STCV46634 SUZANNE STANFORD-KRAFT vs CITY OF LOS ANGELES et al.

On December 7, 2020, Plaintiff filed the present case against Defendant City of Los Angeles, ViacomCBS, CBS Television Studios, and CBS Studios, Inc. Trial is scheduled for March 24, 2025. Plaintiff moves the Court for sanctions against Defendant City of Los Angeles for its failure to comply with two prior court orders.

On October 6, 2023, the Court ruled on Plaintiff’s discovery motions and granted the following relief:

1. Motion to Compel Responses: The Court granted Plaintiff’s Motion to Compel Responses for Request for Production, Set Two, Special Interrogatories, Set One, and Form Interrogatories, Set Two. Defendant City of Los Angeles was ordered to provide verified and objection-free responses to these discovery requests.

2. Request for Admissions: The Court granted Plaintiff’s Motion for Order Deeming Request for Admission, Set One, as admitted. As a result, all statements in Plaintiff’s Request for Admissions, Set One, were deemed admitted against Defendant City of Los Angeles.

The Court directed Defendant to provide the verified discovery responses and pay the sanctions within 20 days of the October 6, 2023, order.

On January 16, 2023, Plaintiff served the first notice of deposition for Defendant’s PMK. Between January and October 2023, Plaintiff rescheduled the PMK deposition multiple times, often due to Defendant’s last-minute unavailability.

On October 18, 2023, Plaintiff filed and served a Motion to Compel the Deposition of Defendant’s PMK. However, based on the Court’s October 19, 2023, ex parte order, Plaintiff took the motion off calendar.

On October 20, 2023, the Court granted a continuance of Defendant’s summary judgment hearing due to Defendant’s failure to respond to discovery and produce its PMK. The Court ordered the PMK deposition to take place within three weeks of this date.

On March 15, 2024, Plaintiff served a sixth notice of deposition for Defendant’s PMK, scheduling it for March 25, 2024.

On April 29, 2024, Plaintiff served a seventh notice of deposition for Defendant’s PMK, scheduling it for May 28, 2024.

Plaintiff alleges that she has not been able to take the deposition of Defendant City of Los Angeles’ Person Most Knowledgeable due to Defendant’s failure to appear or, alternatively, provide different dates for a deposition to move forward. Plaintiff still has not received verifications to the aforementioned discovery responses as previously ordered by this court.

The Civil Discovery Act provides for an escalating and “incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc.¿(2016) 246 Cal.App.4th 566, 604.)¿Discovery sanctions should be appropriate to and commensurate with the misconduct, and they “should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992.) “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Ibid.; see also, e.g.,¿Mileikowsky v. Tenet Healthsystem¿(2005) 128 Cal.App.4th 262, 279-280.)¿“Generally, ‘[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.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 [citation omitted].)

The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Court’s orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a “windfall” for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Court’s orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.” (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 19.)

Defendant filed a late opposition, but the bulk of its arguments focus on Plaintiff’s alleged discovery misconduct in failing to provide dates for her second deposition. However, this motion concerns Defendant’s actions, not Plaintiff’s. Any alleged misconduct by Plaintiff should be raised in Defendant’s own motion.

As for the discovery responses, Defendant states: "With respect to the discovery responses, as noted in the moving papers, substantive, albeit unverified discovery responses were provided long ago." However, unverified responses are tantamount to no responses at all (Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 636-37). and cannot be used to oppose motions for summary judgment. Furthermore, the Court explicitly ordered Defendant to provide objection-free and verified responses, a requirement that has not been fulfilled. Defendant does indicate any intent to provide the required verified, objection-free responses to Plaintiff's discovery requests or monetary sanctions as ordered by the court.

Second, the Court ordered Defendant to produce its PMK by November 2023, yet Defendant has failed to comply with this order for over a year. This failure to produce its PMK has caused significant delays, undermining Plaintiff’s ability to adequately prepare for trial and respond to Defendant’s motion for summary judgment (MSJ). The MSJ, initially set for November 2023, was continued because Plaintiff was unable to depose Defendant’s PMK. Despite repeated continuances and multiple notices of deposition, Defendant has not produced its PMK for deposition.

Defendant, in its opposition, provides no meaningful response for this delay. Defendant argues that Plaintiff has not complied with the Court's prior order to appear for the second session of her deposition and claims that Plaintiff's deposition was ordered to occur first, relying on a discovery order issued on March 1, 2023. However, the March 1, 2023 order does not state that Plaintiff’s second deposition is to occur before Defendant’s PMK deposition. Moreover, as previously stated, this motion concerns Defendant’s misconduct. Plaintiff’s alleged misconduct may be addressed in a separate motion brought by Defendant. As to Defendant’s failure to produce its PMK, Defendant has provided no justification. Additionally, the gravity of the depositions differs: Defendant has already deposed Plaintiff once and filed its MSJ, while Plaintiff has not deposed Defendant’s PMK and requires this deposition to oppose Defendant’s MSJ, which is the primary reason the MSJ has been continued multiple times. For these reasons, the Court finds sanctions appropriate under the circumstances.

However, the Court finds that terminating sanctions and evidentiary sanctions are inappropriate at this time. This is Plaintiff’s first motion for sanctions, and discovery sanctions are to be imposed in an escalating method, with compliance, not punishment, as their purpose. If, following this order, Defendant continues to refuse to comply, such conduct will leave the Court with no choice but to conclude that Defendant’s actions constitute willful disobedience of its orders, warranting more severe sanctions. Simply, further non-compliance will not be tolerated.

Additionally, the motion for summary judgment is set for hearing on January 29, 2025, providing ample time for Plaintiff to depose Defendant’s PMK before the hearing. Terminating sanctions or evidentiary sanctions at this stage would result in a disproportionate remedy, creating a windfall for Plaintiff by placing her in a better position than she would have been if Defendant had simply complied with its discovery obligations.

Plaintiff requests monetary sanctions in the amount of $5,290.00. However, a portion of this amount includes time spent drafting the PMK deposition notices, which occurred prior to the Court’s order compelling the PMK deposition. Additionally, amending deposition notices and meeting and conferring on deposition availability are routine litigation activities. Therefore, the Court, in its discretion, reduces the sanctions to $4,000, representing the amount Plaintiff expended in drafting the present motion against Defendant and its counsel Lillian Harwell[1], jointly and severally within 15 days of today.

The Court further orders Defendant’s PMK deposition to take place within 15 days of this order and further orders Defendant to produce the outstanding discovery responses and pay the monetary sanctions within the same 15-day period.

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

[1] Although a substitution of attorney was filed on October 4, 2024, the misconduct occurred while Lillian Harwell was counsel of record for the City of Los Angeles. Accordingly, the sanctions are directed to the City’s now former counsel.