Judge: Lisa R. Jaskol, Case: 21STCV38920, Date: 2023-09-28 Tentative Ruling
Case Number: 21STCV38920 Hearing Date: April 3, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On October 21, 2021, Plaintiffs Carlos Galvez and Guadalupe Lopez (“Plaintiffs”) filed this action against Defendants Luis Enrique Ordaz, Martin Olvera, Sofia Olvera, Erika Munoz Conde, and Does 1-50 for negligence.
On March 8, 2023, Defendants Martin Olvera and Sofia Olvera filed answers.
On March 28, 2023, Defendants Luis Enrique Ordaz and Erika Munoz Conde (“Moving Defendants”) filed an answer and a cross-complaint against Cross-Defendants Carlos Galvez and Roes 1-20 for indemnity and contribution.
On December 7, 2023, the Court granted Plaintiffs’ counsel’s motion to be relieved as counsel.
On January 29, 2024, Moving Defendants filed a motion for terminating, issue, evidentiary, and monetary sanctions to be heard on April 3, 2024. Plaintiffs have not filed an opposition.
The trial is currently set for May 16, 2024.
PARTIES’ REQUESTS
Moving Defendants ask the Court to issue terminating, issue, evidentiary, and monetary sanctions against Plaintiffs.
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.
“(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.)
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).)
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.)
DISCUSSION
A. Service
The proof of service attached to Moving Defendants’ motion states that Moving Defendants served the motion “electronically . . . to the electronic mail address set forth below . . . .” However, the service list on the following page does not include electronic mail addresses for Plaintiffs. The Court therefore denies the motion for lack of proof of proper service.
B. Sanctions
On December 26, 2023, the Court granted Moving Defendants’ motion to compel Plaintiffs’ response to demand for production (set one) and ordered Plaintiffs to provide verified, code-compliant responses to the demand for production and produce the documents, electronically stored information, and/or other things requested without objections by January 25, 2024. In addition, the Court granted Moving Defendants’ motions to compel Plaintiffs’ responses to special interrogatories (set one) and form interrogatories (set one) and ordered Plaintiffs to provide verified code-compliant responses to the special and form interrogatories without objections by January 25, 2024. The Court also granted Moving Defendants’ request for sanctions and ordered Plaintiffs to pay Moving Defendants $880.00 by January 25, 2024.
Plaintiffs did not comply with the Court’s December 26, 2023 order. Moving Defendants now ask the Court to impose terminating and monetary sanctions on Plaintiffs and dismiss their case. In the alternative, Moving Defendants ask the Court to impose “appropriate issue and evidentiary sanctions . . . precluding plaintiff[s] from presenting any evidence, including testimony on any of the matters addressed by the unanswered discovery . . . .” (Motion p. 5.)
Even if Moving Defendants had properly served their motion, the Court would deny their request for terminating sanctions. Plaintiffs have violated one discovery order. Moving Defendants have not shown that less severe sanctions would be ineffective in producing compliance with the discovery rules.
Moving Defendants have not provided sufficient information to support their alternative request for issue or evidentiary sanctions. They do not specify the issue sanctions they request (see Code Civ. Proc., § 2023.030, subd. (b)) or identify the evidence they wish the Court to exclude (see Code Civ. Proc., § 2023.030, subd. (c)). An order granting Moving Defendants' request to exclude "any evidence" (Motion p. 5) would be a terminating sanction, which the Court has concluded is not appropriate.
CONCLUSION
The Court DENIES without prejudice the motion for terminating, issue, evidentiary, and monetary sanctions filed by Defendants Luis Enrique Ordaz and Erika Munoz Conde.
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.