Judge: Lynette Gridiron Winston, Case: 22PSCV00477, Date: 2024-12-11 Tentative Ruling

Case Number: 22PSCV00477    Hearing Date: December 11, 2024    Dept: 6

CASE NAME:  Amilkar Frausto v. Arch Telecom, Inc. 

Plaintiff Amilkar Frausto’s Motion for Terminating Sanctions Striking Defendant’s Answer and for an Order Finding That Time and Pay Data Produced for Mediations Can be Used in a Future Default Judgment; or in the Alternative, for an Order Compelling Compliance with the Court’s May 1, 2024 Orders, and Continuing the Trial for a Period of Six Months After Defendant Complies with the Court’s Orders 

TENTATIVE RULING 

The Court DENIES Plaintiff Frausto’s motion for terminating sanctions. The Court GRANTS in part Plaintiff’s alternative request to continue trial. The continued trial and related dates will be determined at the hearing. 

The Court further GRANTS Plaintiff Frausto’s request for monetary sanctions in the reduced amount of $2,000.00. Defendant and its counsel of record must pay said monetary sanctions to Plaintiff’s counsel within 20 days of the Court’s order. 

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a Private Attorneys General Act employment action. On May 19, 2022, plaintiff Amilkar Frausto (Plaintiff) filed this action against defendant Arch Telecom, Inc. (Defendant) and Does 1 through 50, alleging causes of action for failure to provide employment records, overtime/double time, meal/rest breaks, minimum wage, accurate/itemized wage statements, reporting time, split shifts, all wages paid on time, all wages paid on discharge/termination, failure to reimburse, and seeking civil penalties. 

On November 7, 2024, Plaintiff moved for terminating sanctions, or in the alternative, for an order compelling compliance with the Court’s May 1, 2024 orders and continuing the trial for six months. On November 26, 2024, Defendant opposed the motion. On December 4, 2024, Plaintiff replied. 

LEGAL STANDARD 

The court is authorized, after notice and an opportunity for hearing, to impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, and contempt. (Code Civ. Proc., §¿2023.030, subds. (a)-(e).) A terminating sanction may be imposed by an order dismissing the action of the party that brought the action. (Ibid., § 2023.030, subd. (d)(3).)   

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. [Citation.]” (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992 (Doppes); see J.W. v. Watchtower Bible and Tract Society of New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.) If a lesser sanction fails to curb misuse, a greater sanction is warranted. (Doppes, supra, 174 Cal.App.4th at p. 992.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed what is required to protect the interests of the party entitled to but denied discovery.’ [Citation.]” (Ibid.) “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.” (Ibid., quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Creed-21 v. City of Wildomar¿(2017) 18 Cal.App.5th 690, 702, quoting Doppes and Mileikowsky.)   

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes, supra, 174 Cal.App.4th at p. 992.) 

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required discovery responses. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.)  

Code of Civil Procedure section 2023.010, subdivisions (d) and (f), provide that a misuse of the discovery process includes, but is not limited to, “[f]ailing to respond or to submit to an authorized method of discovery” and “[m]aking an evasive response to discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (f).) 

DISCUSSION 

Meet and Confer 

The Court finds Plaintiff’s efforts to meet and confer sufficient. (Gonzalez Decl., ¶ 11.) 

Summary of Arguments 

Plaintiff seeks terminating sanctions based on Defendant’s failure to provide any responses to Plaintiff’s discovery requests as ordered by the Court on May 1, 2024. Plaintiff indicates that despite many attempts to meet and confer with Defendant, Plaintiff has not received a single response to those discovery requests. Plaintiff contends Defendant has engaged in egregious misuse of the discovery process given Defendant’s failure to comply with the Court’s May 1, 2024 order. Plaintiff states the original discovery was served in March 2023, but still no responses have been served, which has severely prejudiced Plaintiff’s ability to prepare for the trial in January 2025. Plaintiff contends terminating and/or issue sanctions should be imposed. Plaintiff further contends the documents produced at mediation are not subject to the mediation privilege and can be used in a future default because the documents requested, e.g., time and pay records and handbooks, were not created for meditation, but were instead kept in the regular course of Defendant’s business. Plaintiff also contends monetary sanctions are warranted. 

In opposition, Defendant contends terminating sanctions are not warranted because Defendant has substantially complied with its discovery obligations by recently producing verified, code-compliant responses without objections to the specified discovery requests, including documents. Defendant contends it had already produced approximately 4,000 pages of documents, and that the recently produced documents encompass all remaining responsive documents. Defendant contends any delay was not willful or in bad faith because of logistical challenges associated with collecting, reviewing, and producing a large volume of documents, and that Defendant had initially focused on providing a representative sample of documents for the mediation as agreed upon with Plaintiff. Defendant contends that Plaintiff has not suffered irreparable prejudice and that lesser sanctions, namely monetary sanctions, are appropriate. 

In reply, Plaintiff contends that Defendant’s last-minute production has severely prejudiced Plaintiff’s ability to prepare for trial on January 6, 2025, i.e., just one month away. Plaintiff contends Defendant’s recent production also asserted objections instead of providing substantive responses to some of the requests, and that Defendant’s informal production for mediation is no substitute for discovery responses. Plaintiff contends that logistical challenges are no excuse for Defendant’s delayed production. Plaintiff notes that Defendant concedes monetary sanctions are appropriate, and that Defendant does not oppose a trial continuance. 

Analysis 

The Court finds Plaintiff is not entitled to terminating sanctions, as they are a last resort to be used only when lesser sanctions will not produce compliance. (Doppes, supra, 174 Cal.App.4th at p. 992; see also Sauer v. Superior Ct. (1987) 195 Cal.App.3d 213, 228 [imposition of sanctions lies within the court’s discretion].) Defendant ultimately did comply with the Court’s May 1, 2024 order and produced documents to Plaintiff, albeit very late. (Chen Decl., ¶ 9.) Accordingly, the Court DENIES Plaintiff’s motion for terminating sanctions. The Court nevertheless admonishes Defendant and its counsel of record to comply with discovery obligations, and warns that any further misconduct in this regard may result in greater sanctions. (Lopez v. Watchtower Bible & Tract Soc'y of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [discovery statutes evince an incremental approach to sanctions].) 

To the extent that Plaintiff contends Defendant asserted improper objections or otherwise provided improper responses, Plaintiff will need to address those issues separately in a motion to compel further responses after an Informal Discovery Conference. (Code Civ. Proc., §§ 2030.300, subd. (a)(3), 2031.310, subd. (a)(3); Dept. 6 Courtroom Information, bold in original [“No motion to compel further discovery, or the other above-described discovery motions will be heard until an IDC is conducted”].) 

The Court further finds that Defendant’s delayed production of documents on November 26, 2024, i.e., a year and a half after service of the original responses, six months after the Court ordered responses, and one month before trial, is unduly prejudicial to Plaintiff. (Gonzalez Decl., ¶¶ 2, 5-6; Chen Decl., ¶ 9; see Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669 [prejudice resulting from delayed discovery responses is a factor for the court’s consideration in a motion for terminating sanctions].) The Court notes that part of this delay can be attributed to Plaintiff, as it is unclear why Plaintiff waited one year to bring the original motions to compel responses or five months to bring this motion for terminating sanctions. (See Gonzalez Decl., ¶¶ 5-12.) That being said, Defendant clearly failed to abide by the time limits of the Court’s May 1, 2024 order, and has effectively sandbagged Plaintiff’s ability to meaningfully prepare for trial by producing thousands of documents one month before the trial is scheduled to begin. (See Chen Decl., ¶ 9; Order re Tentative Ruling (5/1/24).) Accordingly, the Court will GRANT in part Plaintiff’s alternative request for a trial continuance. The continued trial date and related dates will be determined at the hearing on this motion. 

Finally, the Court does find that Plaintiff is entitled to monetary sanctions, which Defendant does not dispute. (Opp., 7:23-8:2.) Defendant’s vague assertion of “logistical challenges” does not provide any meaningful explanation for the severe delay here. (Chen Decl., ¶¶ 7-8.) Accordingly, the Court GRANTS Plaintiff’s request for monetary sanctions in the reduced amount of $2,000.00, comprised of 3.0 hours preparing the motion and reviewing and responding to the opposition, plus 1.0 hour for appearing at the hearing on the motion, for a total of 4.0 hours, multiplied by the hourly rate of $500.00.[1] 

CONCLUSION 

The Court DENIES Plaintiff Frausto’s motion for terminating sanctions. The Court GRANTS in part Plaintiff’s alternative request to continue trial. The continued trial and related dates will be determined at the hearing. 

The Court further GRANTS Plaintiff Frausto’s request for monetary sanctions in the reduced amount of $2,000.00. Defendant and its counsel of record must pay said monetary sanctions to Plaintiff’s counsel within 20 days of the Court’s order. 

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.