Judge: Lisa R. Jaskol, Case: 21STCV43901, Date: 2023-11-07 Tentative Ruling
Case Number: 21STCV43901 Hearing Date: April 16, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On December 1, 2021, Plaintiff Cedric Taite (“Plaintiff”) filed this action against Defendants Omar Penaloza (“Penaloza”), J.J. Associates Inc., and Does 1-10 for negligence.
On March 2, 2023, Plaintiff amended the complaint to include Defendant J.J Kane Associates, Inc. (“Kane”) as Doe 1.
On March 6, 2023, the Court dismissed Defendant J.J Associates, Inc. without prejudice at Plaintiff’s request.
On April 19, 2023, Penaloza and Kane filed answers.
On March 19, 2024, Plaintiff filed motions for terminating sanctions against Penaloza and Kane. On March 29, 2024, Penaloza filed an opposition. On April 3, 2024, Kane filed an opposition. On April 8, 2024, Plaintiff filed replies.
The trial is currently set for August 29, 2024.
PARTIES’ REQUESTS
Plaintiff asks the Court to issue terminating sanctions or, in the alternative, evidentiary or issue sanctions against Penaloza and Kane and to award monetary sanctions.
Penaloza and Kane ask the Court to deny the motions.
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 to respond 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 to respond 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
A. Plaintiff’s motion for terminating sanctions against Penaloza
On November 7, 2023, the Court granted Plaintiff’s unopposed motions to compel Penaloza’s responses to form interrogatories, special interrogatories, request for production of documents, and requests for admission. The Court ordered Penaloza to provide verified code-compliant responses to the interrogatories, requests for admission, and request for production of documents without objections by December 7, 2023 and to produce the documents, electronically stored information, and/or other things requested without objections by December 7, 2023.
On January 5, 2024, Penaloza served responses without verifications. Penaloza did not produce any documents in response to Plaintiff’s request for production. Plaintiff’s counsel sent Penaloza’s counsel a meet and confer letter explaining the deficiencies in Penaloza's responses, but Penaloza’s counsel did not respond.
Arguing that unverified responses are the equivalent of no responses, Plaintiff asks the Court to impose terminating sanctions, strike Penaloza’s answer, and enter his default. In the alternative, Plaintiff asks the Court to impose evidentiary sanctions barring Penaloza from introducing any evidence at trial, or issue sanctions prohibiting Penaloza from asserting any defenses.
Penaloza responds that the failure to provide a verification was not willful but instead resulted from his counsel’s extended physical absence from the office due to a medical condition. Penaloza asserts that terminating, evidentiary, and issue sanctions therefore are not appropriate.
The Court denies Plaintiff’s request for terminating sanctions. Penaloza has violated one discovery order to date. Plaintiff 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.) The Court also denies Plaintiff’s request for evidence and issue sanctions, which would be equivalent to the terminating sanctions that the Court has determined are premature.
Plaintiff requests monetary sanctions of $1,061.65. 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 four hours of attorney time at a rate of $250.00 per hour and one $61.65 filing fee. Counsel spent “well over two hours to research, prepare and draft [the] motion” and anticipated that it would take “well over one hour to research, prepare and draft a reply to Defendant’s opposition” and “well over one hour to prepare for, appear for and argue the motion.”
The Court grants sanctions of $561.65 based on two hours of attorney time and one filing fee.
B. Plaintiff’s motion for terminating sanctions against Kane
On November 9, 2023, the Court granted Plaintiff’s unopposed motions to compel Kane’s responses form interrogatories, special interrogatories, request for production of documents, and requests for admission. The Court ordered Kane to provide verified code-compliant responses to the interrogatories, requests for admission, and request for production of documents without objections by December 9, 2023 and to produce the documents, electronically stored information, and/or other things requested without objections by December 9, 2023.
Plaintiff’s counsel agreed to extend the deadline for Kane to comply with the Court’s November 9, 2023 order to January 5, 2024.
On January 5, 2024, Kane served responses without verifications. Kane did not produce any documents in response to Plaintiff’s request for production. Plaintiff’s counsel sent Kane’s counsel a meet and confer letter explaining the deficiencies in Kane's responses, but Kane’s counsel did not respond.
Arguing that unverified responses are the equivalent of no responses, Plaintiff asks the Court to impose terminating sanctions, strike Kane’s answer, and enter its default. In the alternative, Plaintiff asks the Court to impose evidentiary sanctions barring Kane from introducing any evidence at trial, or impose issue sanctions prohibiting Kane from asserting any defenses.
Kane responds that the failure to provide a verification was not willful but instead resulted from its counsel’s extended physical absence from the office due to a medical condition. Kane asserts that terminating, evidentiary, and issue sanctions therefore are not appropriate.
The Court denies Plaintiff’s request for terminating sanctions. Kane has violated one discovery order to date. Plaintiff 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.) The Court also denies Plaintiff’s request for evidence and issue sanctions, which would be equivalent to the terminating sanctions that the Court has determined are premature.
Plaintiff requests monetary sanctions of $1,061.65. 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 four hours of attorney time at a rate of $250.00 per hour and one $61.65 filing fee. Counsel spent “well over two hours to research, prepare and draft this motion” and anticipated that it would take “well over one hour to research, prepare and draft a reply to Defendant’s opposition” and “well over one hour to prepare for, appear for and argue the motion.”
The Court grants sanctions of $561.65 based on two hours of attorney time and one filing fee.
CONCLUSION
The Court GRANTS IN PART Plaintiff Cedric Taite’s motion for terminating sanctions against Defendant J.J. Kane Associates, Inc. and orders Defendant J.J Kane Associates, Inc. and its counsel to pay Plaintiff Cedric Taite $561.65 by May 16, 2024. In all other respects, the Court DENIES the motion.
The Court ORDERS Defendant Omar Penaloza to comply with the Court’s November 7, 2023 order by April 23, 2024.
The Court ORDERS Defendant J.J. Kane Associates, Inc. to comply with the Court’s November 9, 2023 order by April 23, 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.