Judge: Lee S. Arian, Case: 22STCV25558, Date: 2023-11-13 Tentative Ruling

Case Number: 22STCV25558    Hearing Date: November 13, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

                    I.INTRODUCTION 

On August 8, 2022, Plaintiffs Herbert C. Rubinstein, Trustee of The Herbert C. & Pauline L. Rubinstein Family Trust of 2016 and Colby Development, LP (“Plaintiffs”) filed a complaint against Defendant Colby Square Homeowners Association, Inc., (“Defendant”) alleging four causes of action for general negligence and common counts. The complaint alleges that a water pipe burst in the Subject Building, which caused extensive water damage to Plaintiff’s unit. Additionally, Plaintiffs allege that Defendant is holding insurance proceeds, but has not released the funds to Plaintiffs.

On September 27, 2022, Defendant Colby Square Homeowners Association, Inc., filed an Answer.

On May 4, 2023, Defendant filed multiple motions to compel responses. They were GRANTED.

On October 5, 2023, Defendant filed the current Motion for Terminating Sanctions. On October 31, 2023, Defendant filed a Notice of non-Receipt of Plaintiffs’ Opposition. As of November 9, 2023, no Opposition has been filed.  

                 II.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, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) 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.)  The court may impose a terminating sanction by one of the following orders: 

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. 

(2) An order staying further proceedings by that party until an order for discovery is obeyed. 

(3) An order dismissing the action, or any part of the action, of that party. 

(4) An order rendering a judgment by default against that party. 

(Code Civ. Proc., § 2023.030, subd. (d).) 

              III.REQUEST FOR JUDICIAL NOTICE

Evidence Code Section 452 allows the Court to take judicial notice of certain types of documents, including “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

            Defendant moves to have the Court take judicial notice of the following documents:

1.      Defendants’ Notice of Motion and Motion to Compel Plaintiff Herbert C. Rubinstein’s Responses to Form Interrogatories (Set One) and Request for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of Caitlin J. Hoffman in Support Thereof.

2.      Defendants’ Notice of Motion and Motion to Compel Plaintiff Colby Development LP’s Responses to Form Interrogatories (Set One) and Request for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of Caitlin J. Hoffman in Support Thereof

3.      Defendants’ Notice of Motion and Motion to Compel Plaintiff Herbert C. Rubinstein’s Responses to Special Interrogatories (Set One) and Request for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of Caitlin J. Hoffman in Support Thereof.

4.      Defendants’ Notice of Motion and Motion to Compel Plaintiff Colby Development LP’s Responses to Special Interrogatories (Set One) and Request for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of Caitlin J. Hoffman in Support Thereof.

5.      Defendants’ Notice of Motion and Motion to Compel Plaintiff Herbert C. Rubinstein’s Responses to Request for Production (Set One) and Request for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of Caitlin J. Hoffman in Support Thereof.

6.      Defendants’ Notice of Motion and Motion to Compel Plaintiff Colby Development LP’s Responses to Requests for Production (Set One) and Request for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of Caitlin J. Hoffman in Support Thereof.

7.      Notice of Non-Receipt of Opposition to Defendant’s Motions to Compel Plaintiffs’ Responses to Discovery Requests.

8.      Notice of Ruling on Defendants’ Motion to Compel Plaintiffs’ Responses to Discovery Requests.

Each of these is part of the court record in this case and, thus, the Court takes judicial notice of these documents as requested.

              IV. DISCUSSION

Defendant moves for terminating sanctions, requesting that the case be dismissed with prejudice.

Background:

On January 13, 2023, Defendant served Form Interrogatories, Special Interrogatories, and Requests for Production of Documents to each Plaintiff. After granting two extensions, Plaintiffs failed to provide responses. Defendant filed motions to compel responses, and all the motions were GRANTED on August 14, 2023. This Court ordered responses within 20 days and sanctions totaling $780, However, as of the filing of the current motion on October 5, 2023, no responses had been provided.

Defendant seeks terminating sanctions based on Plaintiffs’ failures to respond to discovery pursuant to court order.  Plaintiffs have failed to provide any responses for eight months and have failed to cooperate with litigation, not returning Defense counsel’s phone calls.

“The trial court may order a terminating sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” Los Defensores, Inc. v. Gomez (2014) 223 Cal.App..4th 377, 390.) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id.)

Here, the discovery requests were sent in January 2023. After repeated attempts to obtain responses and multiple motions to compel, Plaintiffs still have not been provided responses and have failed to comply with this Court’s orders. And to accentuate their unresponsiveness, Plaintiffs have not even responded to this motion for terminating sanctions.  Given the totality of these circumstances, the Court finds that terminating sanctions are appropriate. 

              IV.CONCLUSION 

Motion for Terminating Sanctions is GRANTED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar. 

Dated this 9th day of November 2023