Judge: Lisa R. Jaskol, Case: 21STCV35243, Date: 2023-11-28 Tentative Ruling
Case Number: 21STCV35243 Hearing Date: March 6, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On September 23, 2021, Plaintiff Nancy Stewart (“Nancy Stewart”) filed this action against Defendants Audrey Forte (“Forte”) and Does 1-50 for wrongful death-negligence.
On November 3, 2021, Forte filed an answer.
On October 11, 2022, Forte filed a cross-complaint against Cross-Defendants Estate of Westin Lee Stewart, Deceased, Nancy Stewart, as an individual and as successor in interest to Westin Lee Stewart, Deceased, and Roes 1 through 100 for negligence, negligence per se, equitable indemnity, contribution, and declaratory relief. On June 30, 2023, the Estate of Westin Lee Stewart, Deceased, and Nancy Stewart (“Cross-Defendants”) filed an answer.
On January 4, 2024, Cross-Defendants filed a motion for terminating sanctions, to be heard on March 6, 2024. On March 5, 2024, Forte filed an untimely opposition.
The trial is currently set for October 7, 2024.
PARTIES’ REQUESTS
Cross-Defendants ask the Court to impose terminating sanctions against Forte or, in the alternative, impose issue or evidentiary sanctions. Cross-Defendants also request monetary sanctions.
LEGAL STANDARD
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.
“(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. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.
“(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. . . ."
(Code Civ. Proc., § 2023.030, subds. (a), (b), (c), (d).)
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.)
DISCUSSION
On November 28, 2023, the Court granted Cross-Defendants’ motion to compel Forte to respond to requests for production of documents and ordered Forte to provide verified, code-compliant responses and to produce the documents, electronically stored information, and/or other things requested without objections by December 20, 2023. The Court also granted Cross-Defendants’ motion to compel Forte to respond to special interrogatories and form interrogatories and ordered Forte to provide verified, code-compliant responses to the interrogatories without objections by December 20, 2023. In addition, the Court imposed monetary sanctions on Forte.
Forte did not fully comply with the Court’s November 28, 2023 order. Forte had not provided responses to Cross-Defendants’ requests for production of documents or paid the monetary sanctions by the time Cross-Defendants filed this motion for terminating sanctions on January 4, 2024.
Forte’s untimely opposition to Cross-Defendants’ motion states that Forte’s counsel served the responses to special interrogatories on January 2, 2024 and counsel mistakenly believed he had served the responses to the requests for production of documents the same day. The opposition states that Forte’s counsel has now served the responses to the requests for production of documents. It does not address the payment of monetary sanctions.
The Court denies Cross-Defendants’ request for terminating sanctions. However, the Court awards additional monetary sanctions for Forte’s delay in complying with the Court’s November 28, 2023 order.
Cross-Defendants request monetary sanctions of $800.00 based on 6.5 hours of attorney time at a rate of $185.00 per hour and one $60.00 filing fee. Counsel spent 5.5 hours drafting the motion and supporting papers anticipated spending one hour to attend the hearing.
The Court awards sanctions of $430.00 based on two hours of attorney time and one filing fee.
CONCLUSION
The Court DENIES the motion for terminating sanctions filed by Cross-Defendants Estate of Westin Lee Stewart, Deceased, and Nancy Stewart.
The Court GRANTS the request for monetary sanctions of Cross-Defendants Estate of Westin Lee Stewart, Deceased, and Nancy Stewart and orders Cross-Complainant Audrey Forte and her counsel to pay Cross-Defendants Estate of Westin Lee Stewart, Deceased, and Nancy Stewart $430.00 in sanctions by April 5, 2024.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file a proof of service of this ruling with the Court within five days.