Judge: Lisa R. Jaskol, Case: 21STCV16121, Date: 2024-01-04 Tentative Ruling
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Case Number: 21STCV16121 Hearing Date: April 9, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On April 28, 2021, Plaintiff Joshua Olaoniye (“Plaintiff”) filed this action against Defendants Goldenvoice, LLC (“Goldenvoice”), AEG Presents, LLC (“AEG”), Apex Security Group, Inc. (“Apex”), and Does 1-50 for negligence and battery.
On October 11, 2022, Apex filed an answer.
On October 31, 2022, Plaintiff filed a first amended complaint against the same defendants for negligence, battery and false imprisonment.
On February 1, 2023, the Court sustained Apex’s demurrer to Plaintiff’s false imprisonment claim without leave to amend and granted Apex’s motion to strike Plaintiff’s request for attorney’s fees with leave to amend.
On March 16, 2023, Apex filed an answer.
On March 12, 2024, Apex filed a motion for terminating sanctions or, in the alternative, for issue and evidentiary sanctions, and for monetary sanctions, to be heard on April 9, 2024. Plaintiff has not filed an opposition.
The trial is currently set for September 9, 2024.
PARTY’S REQUESTS
Apex asks the Court to issue terminating sanctions or, in the alternative, issue and/or evidentiary sanctions. Apex also asks the Court to award monetary sanctions.
LEGAL STANDARD
A. Monetary, issue, evidentiary, and terminating sanctions
Code of Civil Procedure section 2023.030 provides in part:
“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, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
“(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.
“(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.
“(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.
“(f) (1) Notwithstanding subdivision (a), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.
“(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.
(Code Civ. Proc., § 2023.030.)
B. Sanctions for failure to comply with Court order compelling response to demand for inspection
Code of Civil Procedure section 2031.300, subdivision (c), provides in part:
“If a party . . . fails to obey [an] order [under Code of Civil Procedure section 2031.300, subdivision (b)] compelling a response [to a demand for inspection, copying, testing, or sampling], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
(Code Civ. Proc., § 2031.300, subd. (c).)
C. Sanctions for failure to comply with Court order compelling response to interrogatories
Code of Civil Procedure section 2030.290, subdivision (c), provides in part:
“If a party then fails to obey an order [under Code of Civil Procedure section 2030.290, subdivision (b)] compelling answers [to interrogatories], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
(Code Civ. Proc., § 2030.290, subd. (c).)
A violation of a discovery order supports 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 (Deyo).)
A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, supra, 84 Cal.App.3d at p. 793.) "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 (Mileikowsky).)
DISCUSSION
On January 4, 2024, the Court made the following rulings:
·
The Court granted
the motion of Apex, AEG, and Goldenvoice to compel Plaintiff to attend his
deposition and ordered Plaintiff to appear for his deposition by February 5,
2024.
·
The Court granted
Apex’s motion to compel Plaintiff to respond to Apex’s requests for production
of documents and ordered Plaintiff to provide verified, code-compliant
responses without objections and to produce the documents, electronically
stored information, and/or other things requested without objections by
February 5, 2024.
·
The Court granted
Apex’s motion to compel Plaintiff to respond to Apex’s special interrogatories
and ordered Plaintiff to provide verified, code-compliant responses to the
special interrogatories without objections by February 5, 2024.
·
The Court granted
Apex’s motion to compel Plaintiff to respond to Apex’s form interrogatories and
ordered Plaintiff to provide verified, code-compliant responses to the form
interrogatories without objections by February 5, 2024.
·
The Court granted
Apex’s motion to deem admitted matters specified in Apex’s requests for
admission and deemed admitted the matters specified in Apex’s requests for
admission.
· The Court granted Apex’s request for monetary sanctions and ordered Plaintiff and his counsel, jointly and severally, to pay Apex $2,925.60, consisting of $1,240.65 for the motion to compel Plaintiff’s deposition, $561.65 for the motion to compel Plaintiff’s response to requests for production of documents, $561.65 for the motion to compel Plaintiff’s response to interrogatories, and $561.65 for the motion to deem admitted matters specified in requests for admission.
Apex argues that Plaintiff has failed to comply with the January 4, 2024 order because he has not provided verified code-compliant responses to the request for production of documents, special interrogatories, or form interrogatories, and has not paid the monetary sanctions. Therefore, Apex argues, the Court should award terminating sanctions and dismiss Plaintiff’s claims against Apex.
The Court denies Apex’s request for terminating sanctions. Plaintiff has violated one discovery order to date. Apex has not shown that less severe sanctions would be ineffective in producing compliance with the discovery rules. (See Mileikowsky, supra, 128 Cal.App.4th at pp. 279-280.)
In the alternative, Apex asks the Court to impose issue or evidentiary sanctions on Plaintiff by ruling, among other things that “Plaintiff [is] prohibited from supporting his claim for negligence” and that “Plaintiff [is] prohibited from supporting his claim for battery.” The requested rulings are indistinguishable from terminating sanctions, which the Court has concluded are premature.
Apex also asks the Court to impose issue or evidentiary sanctions based on the Court’s January 4, 2024 order deeming admitted matters specified in Apex’s requests for admission. Because these facts are already deemed admitted, the Court will not make duplicative findings in the form of issue or evidentiary sanctions.
In addition, Apex requests monetary sanctions of $3,861.65. Sanctions are authorized by Code of Civil Procedure sections 2031.300, subdivision (c) (failure to comply with order compelling response to demand for inspection) and 2030.290, subdivision (c) (failure to comply with order compelling response to interrogatories). The request is based on ten hours of attorney time at a rate of $280.00 per hour, a $61.65 filing fee, and $1,000.00 under Code of Civil Procedure section 2023.050.
The Court grants sanctions of $1,561.65 based on two hours of attorney time at a reasonable rate of $250.00 per hour, one filing fee, and $1,000.00 under Code of Civil Procedure section 2023.050 based on the Court’s finding that Plaintiff did not respond in good faith to an inspection demand made under Code of Civil Procedure section 2031.010. (See Code Civ. Proc., § 2023.050, subd. (a)(1).)
CONCLUSION
The Court GRANTS IN PART Defendant Apex Security Group, Inc.’s motion for terminating sanctions or, in the alternative, issue and evidentiary sanctions, and monetary sanctions, and orders Plaintiff Joshua Olaoniye and his counsel to pay Defendant Apex Security Group, Inc. $1,561.65 by May 3, 2024. In all other respects, the Court DENIES the motion.
The Court sua sponte modifies its January 4, 2024 order to specify that Plaintiff Joshua Olaoniye and his counsel, jointly and severally, are ordered to pay Defendant Apex Security Group, Inc. sanctions of $2,925.60 by May 3, 2024.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file a proof of service of this ruling with the Court within five days.