Judge Linda S. Marks, Case 2019-01067104 2022-12-05 Tentative Ruling

Judge: Linda S. Marks, Case: 2019-01067104, Date: 2022-12-05 Tentative Ruling

1. Motion for Reconsideration filed by Gail Kay on 10/11/22
2. Motion for Terminating Sanctions filed by MBR Operating Co. Inc., and Monroe MBR, LLC on 11/8/22

Motion #1 for Reconsideration:

Plaintiff argues the “new fact” is that she provided responses to the RFAS prior to the hearing on the Motion to be Deemed Admitted; and therefore the Court could not grant the motion under CCP§2033.280. [Decl. Kay¶3.]

However, this argument is problematic for several reasons.

First, Plaintiff’s declaration does not suffice as competent evidence as it was not signed under penalty of perjury. [See CCP § 2015.5.]

Second, even assuming Plaintiff did serve responses prior to the hearing, the Court was still entitled to grant the motion if the responses did not substantially comply. [CCP§2033.280]. Plaintiff has not argued or established that the responses substantially complied. Indeed, the responses have not been provided to the Court with the Motion.

Third, Plaintiff has not demonstrated why this “new fact” was not presented to the Court earlier at the hearing. In actuality, it appears that the Court was aware of the responses, and granted the motion nonetheless. [Declaration of Park¶10.]

Fourth, Plaintiff seems to argue that because she is in pro per, she did not argue at the hearing that by serving her responses, the motion must be denied. [See Decl. of Kay¶4.] However, the fact that plaintiff is in pro per does not afford her special treatment. [ Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.] Furthermore, as suggested above, the fact that she served responses, alone, did not warrant a denial of the motion. Rather, the motion would have been denied only if the untimely responses substantially complied with the code—which Plaintiff still fails to establish.

Tentative Ruling: Plaintiff’s Motion for Reconsideration of the Court’s 9/28/2022 ruling is DENIED. CCP§1008

Defendant to give notice.

Motion #2 for Terminating Sanctions:

CP § 2023.010 states, in part, as follows: “Misuses of the discovery process include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.”

CCP § 2023.030 provides, in part, as follows: “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process. . . .(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. . . .(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. . . .(d) 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. . . .”

Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992, explains, “The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ‘ “attempt [ ] to tailor the sanction to the harm caused by the withheld discovery.” ’ [Citation.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citations.] [¶] The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ‘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.” ’ [Citation.] 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. ‘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.’ [Citation.] (Footnote 5 omitted.)”

Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559 states, “Code of Civil Procedure section 2023.030, subdivision (c), provides that the trial court may sanction any party engaging in a misuse of the discovery process by prohibiting that party from introducing designated matters in evidence. A failure to respond to an authorized method of discovery may constitute misuse of the discovery process. [Citation.] Nevertheless, absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful. [Citation.]” (Emphasis in original.)

Here, the motion appears to be based on 1) past abuses, 2) outstanding responses, 3) threatening emails.

First, as to past abuses, although MP brought several discovery motions in the past which were granted, (See Decl. of Park¶¶5-11) there is no showing that Plaintiff was ever ordered to pay sanctions. A greater sanction is only warranted if the lesser sanction did not curb the abuses. Furthermore, it is unclear whether, after Plaintiff was ordered to provide responses, she failed to do so.

Second, as to outstanding discovery, Attorney Park declares that Supplemental Rogs, RPDS, and RFAS were served on Plaintiff on 9/19/2022. Responses were due 10/22/2022, but Plaintiff has not provided responses. [Decl. Park ¶¶12-14.] However, MP should first bring a motion to compel seeking compliance and monetary sanctions; and only thereafter, seek terminating sanctions to the extent the lesser sanctions/order does not compel compliance.

Finally, as to threatening emails (Decl. of Park¶15, Ex. 4), while Plaintiff’s emails are incredibly discourteous—it is unclear how they can serve as the basis for terminating sanction other than to demonstrate a further meet and confer attempt is entirely futile.

Tentative Ruling: The Motion for Terminating Sanction is DENIED. The Court will reserve the issue of monetary sanctions for a motion to compel compliance.

Defendant to give notice.