Judge Lisa R. Jaskol, Case Number: 22STCV19937, Date: 2023-11-22 Tentative Ruling

Judge: Lisa R. Jaskol, Case: 22STCV19937, Date: 2023-11-22 Tentative Ruling

Case Number: 22STCV19937 Hearing Date: November 22, 2023 Dept: 28

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 17, 2022, Plaintiff Virginia Wise (“Plaintiff”) filed this action against Defendants Gelson’s Markets (“Defendant”) and Does 1-50 for premises liability.

On August 18, 2022, Defendant filed an answer.

On September 7, 2023, Plaintiff filed a motion for sanctions to be heard on November 22, 2023. Defendant has not filed an opposition.

The trial is currently scheduled for December 15, 2023.

PARTY’S REQUEST

Plaintiff requests that the Court impose issue, evidentiary, terminating, and monetary sanctions on Defendant.

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.

“(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.)

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 July 26, 2023, the Court granted Plaintiff’s motion to compel Defendant to comply with Plaintiff’s request for production of documents and awarded sanctions against Defendant and its counsel. The Court ordered Defendant to provide all requested documentation and the privilege log within 30 days of the hearing on the motion.

Defendant did not comply with the Court’s July 26, 2023 order and had not provided responsive documents by the time Plaintiff filed this motion on September 7, 2023.

The Court imposes evidentiary sanctions against Defendant for its failure to comply with the Court’s July 26, 2023 order. Defendant may not introduce any documents or things into evidence that it did not produce in response to Plaintiff’s Requests for Production, Set One. The Court denies Plaintiff’s request for issue and terminating sanctions.

Plaintiff requests $710 in monetary sanctions, consisting of two hours of attorney time at $325.00 per hour to prepare the motion and a $60.00 filing fee. The Court finds that Defendant has misused the discovery process and awards Defendant sanctions of $560 consisting of two hours of attorney time at a reasonable rate of $250 per hour and one $60 filing fee.

“Monetary sanctions against the party’s attorney require a finding that the attorney advised the client’s conduct that resulted in sanctions.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:1601.5, p. 8I-26.) “The burden is on the attorney to prove the attorney had not advised the client to engage in the sanctionable conduct.” (Id., ¶ 8:1601.6, p. 8I-27.) Plaintiff’s counsel has not carried counsel’s burden of proving counsel did not advise Plaintiff to engage in the sanctionable conduct.

CONCLUSION

The Court GRANTS IN PART Plaintiff Virginia Wise’s motion for sanctions and imposes evidentiary sanctions as set forth above.

The Court also GRANTS Plaintiff Virginia Wise’s request for monetary sanctions and orders Defendant Gelson’s Markets and its counsel to pay Plaintiff Virginia Wise $560 in sanctions within 30 days of the hearing on this motion.

In all other respects, the Court DENIES the motion.

Moving party is ordered to give notice of this ruling.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.