Judge: Lee S. Arian, Case: 23STCV16729, Date: 2024-08-28 Tentative Ruling

Case Number: 23STCV16729    Hearing Date: August 28, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27 

MOTIONS FOR TERMINATING SANCTIONS AND MONETARY SANCTIONS

Hearing Date: 8/28/24¿ 

CASE NO./NAME: 23STCV16729 CESAR ALDANA REYES, et al. vs ALAN D. RUCK

Moving Party: Defendant Alan Ruck

Responding Party: Unopposed

Notice: Sufficient¿ 

Ruling: THE COURT WILL HEAR FROM THE PARTIES REGARDING SANCTIONS AGAINST PLAINTIFF XITUMUSUMPANGO. MONETARY SANCTIONS AGAINST PLAINTIFF REYES ARE GRANTED.

Background

On December 21, 2023, Defendant Alan Ruck served Plaintiffs Cesar Reyes and Eddy Xitumusumpango with his Demand for Inspection and Production of Documents (Set No. One). On April 22, 2024, after receiving no discovery responses, Defendant filed motions to compel initial responses to the discovery requests at issue. On May 20 and May 21, the Court granted these motions, ordering Plaintiffs to provide verified discovery responses and to pay monetary sanctions to Defendant. However, as of July 25, 2024, when the current motions were filed, Plaintiffs had neither provided the requested discovery responses nor paid the ordered sanctions. Consequently, Defendant now moves the Court for terminating sanctions and/or monetary sanctions against Plaintiffs. On August 23, 2024, Defendant filed a supplemental declaration stating that he is withdrawing his request for terminating sanctions against Plaintiff Reyes, but he maintains his request for monetary sanctions against Plaintiff Reyes and his terminating and/or monetary sanctions against Plaintiff Xitumusumpango.

Legal Standard¿ 

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (g).) A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030, subd. (d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court’s orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)  

               The court should consider the totality of the circumstances, including 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 discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo, supra, 84 Cal.App.3d at p. 787.) Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)  

               “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.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these 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.” (Deyo, 84 Cal.App.3d at p. 793.) “[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.” (Ibid.)

Discussion

Xitumusumpango

Although Defendant filed a supplemental declaration indicating that responses were provided by Reyes only and that Plaintiff Xitumusumpango has yet to submit his discovery responses, it is important to note that Plaintiff Xitumusumpango is represented by the same attorney as Reyes. Given this shared legal representation, there is a reasonable expectation that the same counsel will ensure that all clients, including Plaintiff Xitumusumpango, comply with their discovery obligations. However, based solely on the defendant's supplemental declaration, the court is uncertain whether Xitumusumpango's discovery responses are forthcoming and whether he is willing to participate in the discovery process.

Typically, when there is no history of discovery abuse and only one violation of a court order is involved, as in this case, the court generally adopts an incremental approach to sanctions rather than imposing the ultimate sanction for Plaintiff’s first offense. However, the conduct of Plaintiff Xitumusumpango and his counsel, including failing to respond to Defendant's communications, not opposing or attending the hearing for the motion to compel, and not opposing the current motion for terminating sanctions, leaves the court uncertain whether Plaintiff Xitumusumpango has abandoned his case. The court will hear from Plaintiff’s counsel regarding the status of Xitumul's discovery responses and whether Plaintiff is prepared to engage in discovery or has he abandoned his case.

Reyes

As to Plaintiff Reyes, his discovery responses were provided on August 5, 2024, only after the present motion for terminating sanctions was filed. Given the past conduct of Plaintiff and his counsel, the court is not certain that responses would have been provided had this motion not been filed. Consequently, the court finds that Defendant was justified in requesting monetary sanctions against Plaintiff Reyes. Defendant requests sanctions in the amount of $660.63, which the court deems reasonable. Therefore, the court orders sanctions in the amount of $660.63 against Plaintiff Reyes and his attorney, jointly and severally, payable to Defendant within 20 days from today.

PLEASE TAKE NOTICE:

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.