Judge Lee W. Tsao, Case Number: 20NWCV00221, Date: 2023-09-07 Tentative Ruling

Judge: Lee W. Tsao, Case: 20NWCV00221, Date: 2023-09-07 Tentative Ruling

Case Number: 20NWCV00221 Hearing Date: December 28, 2023 Dept: C

FIGUEROA v. GAMA

CASE NO.: 20NWCV00221

HEARING: 12/28/23 @ 10:30 a.m.

TENTATIVE RULING

Defendant’s Motion for Terminating Sanctions against Plaintiff is DENIED. The request for monetary sanctions is GRANTED.

Moving Party to give Notice.

CCP §2023.010 includes: “(d) Failing to respond or to submit to an authorized method of discovery.” CCP §2023.030 provides, in part: “To the extent authorized by this chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, may impose the [sanctions] against anyone engaging in conduct that is a misuse of the discovery process, including monetary and issue and terminating sanctions.” Failing to respond to an authorized method of discovery and disobeying a court order to provide discovery are both misuses of the discovery process.” (CCP §§2023.010 (d) and (g).) Sanctions which may be imposed for a misuse of the discovery process include “terminating sanctions.”

This Motion was filed on June 27, 2023. Defendant seeks terminating and monetary sanctions because Plaintiff is refusing to participate in the discovery process. Specifically, Plaintiff has failed to comply with this Court’s June 13, 2023 Discovery Order.

Plaintiff’s Opposition fails to indicate whether the June 13, 2023 Order was ever complied with. Rather, Plaintiff generally states that the requests at issue were already responded to in verified written responses and in two sessions of deposition. Plaintiff fails to squarely address whether specific responses in compliance with the June 13, 2023 Order and sanctions in compliance with the June 13, 2023 were ever served.

The Supplemental Declaration of Aldo Flores in Opposition to this Motion, filed on November 29, 2023—five months after Motion was filed—indicates: “On November 28, 2023, my office served four sets of verified written discovery responses on Defendant Ana Gama. The responses were to Special Interrogatories, Set 2, Requests for Production of Documents, Set Two, Supplemental Responses to Special Interrogatories, Set One, and Supplemental Responses to Requests for Production of Documents, Set One.” (Supp. Flores Decl., ¶2.)

According to Attorney Flores’s Supplemental Declaration, this Motion should be denied because the June 13, 2023 Order was ultimately complied with five months after this Motion was filed (after this Court had continued the hearing on this Motion from November 30, 2023 to this date in order to permit Plaintiff the Opportunity to re-file and re-serve exhibits they failed to attach to their initial Declaration).

It is a commonly stated axiom that 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.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) However, a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with discovery obligations. The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit. (Id. at 794-795.)

The Court does not find that terminating or issue/evidentiary sanctions are warranted here because Plaintiff has not completely abandoned their duties to respond to discovery or comply with Court Orders.

However, the Court does find that further monetary sanctions are warranted due to Plaintiff’s undisputed untimely compliance with the June 13, 2023 Order where untimely responses were served long after this Motion was filed, only after the Motion was continued by this Court.

Further monetary sanctions are GRANTED in the amount requested of $2,707.25—payable by Plaintiff and/or his counsel of record, Aldo Flores, Esq. and Flores Law, APLC, to Defendant and their counsel of record within 90 days of the Court’s issuance of this Order.