Judge: Lynette Gridiron Winston, Case: 22PSCV01744, Date: 2024-12-04 Tentative Ruling

Case Number: 22PSCV01744    Hearing Date: December 4, 2024    Dept: 6

CASE NAME:  Frances Gundlach v. Frank Flores, et al.

2.      Defendant Frank Flores’ Motion to Compel Compliance (CCP § 2031.320(a)) and for Monetary Sanctions in the Amount of $811.65 

TENTATIVE RULING 

The Court DENIES Defendants Frank Flores and Lydia Flores’ motion for terminating sanctions, but GRANTS the alternative motion for monetary sanctions in the amount of $811.65. Plaintiff and her attorney of record must pay said monetary sanctions to counsel for Defendants within 20 days of the Court’s order. 

The Court DENIES Defendant Frank Flores’ motion to compel compliance per Code of Civil Procedure section 2031.320, subdivision (a) and for monetary sanctions. 

            Defendants Frank Flores and Lydia Flores are ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a cat bite case. On November 9, 2022, plaintiff Frances Gundlach (Plaintiff) filed this action against defendants Frank Flores (Frank), Lydia Flores and Does 1 through 100 (collectively, Defendants). On October 18, 2023, Plaintiffs filed the operative First Amended Complaint (FAC) against the same Defendants, alleging causes of action for strict liability, negligence, premises liability, and negligence per se. On January 3, 2024, the Court sustained Defendants’ demurrer to the Fourth Cause of Action for negligence per se with leave to amend. Plaintiff did not amend the FAC. 

PROCEDURAL BACKGROUND – Motion for Terminating Sanctions 

On September 19, 2024, the Court granted Defendant Frank Flores’ motion to compel further responses to Form Interrogatories. Plaintiff was ordered to provide further code-compliant responses, without objections, to Form Interrogatory Numbers 2.1, 2.3, 2.5, 2.6, 2.7, 2.13, 3.6, 3.7, 6.2, 6.4, 6.5, 6.6, 6.7, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 10.2, 10.3, 11.2, 12.1, 12.3, 12.4, 12.5, 13.2, 14.1, 20.1, 20.3, and 20.4, within 20 days of the Court’s order. Plaintiff and her attorney of record were also ordered to pay monetary sanctions to counsel for Defendant Frank Flores in the amount of $811.65 within 20 days of the Court’s order as to such motion. 

Also, on September 19, 2024, the Court granted Defendant Frank Flores’ motion to compel Plaintiff’s further responses to Special Interrogatories.  Plaintiff was ordered to provide further code-compliant responses, without objections, to Special Interrogatory Numbers 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 59, 61, 62, 63, 64, 65, 66, 67, 75, 76, 77, 78, 79, 81, 82, 84, 90, 91, 92, 93, 94, 95, 96, 97, 99, and 100, within 20 days of the Court’s order. Plaintiff and her attorney of record were also ordered to pay monetary sanctions to counsel for Defendant Frank Flores in the sum of $811.65 as to such motion within 20 days of the Court’s order.   

Defendant Frank Flores filed and served a notice of ruling concerning the Court’s September 19, 2024 order on September 20, 2024. 

On October 3, 2024, the Court denied Defendant Frank Flores’ motion for issue/evidence sanctions and/or monetary sanctions in the amount of $811.65. The Court found such motion to be procedurally defective. 

On October 25, 2024, Defendants filed the instant motion for terminating sanctions, or alternatively, monetary sanctions against Plaintiff and her counsel of record for Plaintiff’s failure to comply with the Court’s September 19, 2024 order.

On November 15, 2024, Plaintiff filed an opposition to the motion. On November 25, 2024, Defendants replied. 

LEGAL STANDARD – Motion for Terminating Sanctions 

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. (Id., § 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.) “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Id.) “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.]” (Id.) “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.” (Id., 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.) 

“[A] sanction cannot go further than is necessary to accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) “[S]anctions may not be imposed solely to punish the offending party.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193.) “Furthermore, the sanction chosen should not provide a windfall for the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery and it had been favorable.” (Ibid.) “If a plaintiff wishes to avail himself of the California courts, he owes a duty to comply with its rules, such as the rules of discovery.” (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 253.) 

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 – Motion for Terminating Sanctions 

            Meet and Confer 

            Defendants did not meet and confer in person, by telephone, or by video conference before bringing this motion. (See Kraft Decl., ¶ 5.) Although meeting and conferring is not required before bringing a motion for terminating sanctions based on a failure to obey a court order, the Court does request parties to meet and confer in person, by telephone, or by video conference before bringing any motions. (5. [8:2145] Sanctions for Failure to Obey Court Order:, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8M-5; Dept. 6 Courtroom Information [“Parties are required to meet and confer in person, by telephone, or by video conference before filing any motion”].) 

            Summary of Arguments 

Defendants seek terminating sanctions against Plaintiff to dismiss this action with prejudice, or alternatively seek additional monetary sanctions. Defendants contend Plaintiff willfully disobeyed the Court’s September 19, 2024 order granting Defendants’ motions to compel further responses to Form Interrogatories, Set One, and Special Interrogatories, Set One. Defendants contend Plaintiff attempted to serve unverified responses as Word documents the day before the hearing on September 19, 2024. Defendants contend that, as of the filing of the motion, Plaintiff did not provide verified code-compliant responses. 

As to monetary sanctions, Mr. Kraft states that he has spent over two (2) hours related to the instant motion and anticipates spending over an additional one (1) hour preparing a reply brief and arguing the motion. (Kraft Decl., ¶ 7.) A $61.65 filing fee was incurred for the motion. (Kraft Decl., ¶ 7.) Counsel’s hourly rate is $250.00 per hour and the total time spent on this matter will be three (3) hours. (Kraft Decl., ¶ 7.) Defendants request monetary sanctions of $811.65 against Plaintiff and her counsel of record. (Kraft Decl., ¶ 7.) 

In opposition, Plaintiff indicates having served verified responses on November 13, 2024. 

In reply, Mr. Kraft presents Plaintiff’s purported further responses to Form Interrogatories, Set One and Special Interrogatories, Set One, which were served on November 13, 2024. (Kraft Reply Decl., ¶¶ 3, 5; Exs. B, D.) 

Analysis 

Terminating Sanctions are Inappropriate at This Time

The Court notes that Plaintiff’s opposition tacitly admits failing to comply with the Court’s September 19, 2024 order, as Plaintiff indicates producing the responses on November 13, 2024, well after the deadline to comply. (See generally, Opp.; Order re Tentative Ruling (9/19/24).) Here, it is undisputed that Plaintiff did not serve such further responses until November 13, 2024. Thus, Plaintiff did not comply with this Court’s order. Additionally, upon reviewing Plaintiff’s further responses, the Court notes that Plaintiff still has not provided sufficient further responses. Plaintiff failed to provide an initial response to FROG Nos. 8.7, 8.8, and 10.1. (Kraft Reply Decl., Ex. A.) Plaintiff also failed to provide a further response to FROG Nos. 8.7, 8.8, and 10.2. (Kraft Reply Decl., Ex. B.) Plaintiff’s further responses to the special interrogatories are also deficient. For instance, Plaintiff failed to provide a further response to SROG Nos. 8, 22, and 23. (Kraft Reply Decl., Exs. C, D.) As an additional example of Plaintiff’s non-compliance with this Court’s order, Plaintiff failed to provide any response to SROG No. 20 in either her initial or further responses. (Kraft Reply Decl., Exs. C, D.) Thus, the Court finds that Plaintiff’s belated further responses to the form and special interrogatories are deficient. 

However, the Court finds that imposition of terminating sanctions would amount to punishment and would provide a windfall to Defendants. The Court must take an incremental approach to sanctions. Notwithstanding Plaintiff’s unexplained dilatory conduct, the Court finds terminating sanctions would be excessive at this point in time, given Plaintiff’s eventual production of the responses sought. (Sauer v. Superior Ct. (1987) 195 Cal.App.3d 213, 228 [imposition of sanctions lies within the court’s discretion].) The Court nevertheless admonishes Plaintiff and her 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].) 

The Court therefore DENIES Defendants’ request for terminating sanctions. The Court, however, ORDERS Plaintiff to comply with this Court’s September 19, 2024 order forthwith and in any event no later than 20 days from the Court’s order. 

Monetary Sanctions Should be Imposed

The Court finds that Defendants are entitled to monetary sanctions. Based on the foregoing, the Court GRANTS the alternative request for monetary sanctions in the amount of $811.65, comprised of 3.0 hours preparing the motion and appearing at the hearing on the motion, multiplied by the hourly rate of $250.00, plus the $61.65 filing fee. Plaintiff and her attorney of record must pay said monetary sanctions to counsel for Defendants within 20 days of the Court’s order.

PROCEDURAL BACKGROUND – Motion to Compel Compliance 

            On October 25, 2024, Defendant Frank moved to compel compliance under Code of Civil Procedure section 2031.320, subdivision (a). The motion is unopposed. 

LEGAL STANDARD – Motion to Compel Compliance

            “If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).) 

DISCUSSION – Motion to Compel Compliance 

            Meet and Confer 

Defendant Frank did not meet and confer in person, by telephone, or by video conference before bringing this motion. (See Kraft Decl., ¶ 5.) Although meeting and conferring is not required before bringing a motion to compel compliance under Code of Civil Procedure section 2031.320, subdivision (a), the Court does request parties to meet and confer in person, by telephone, or by video conference before bringing any motions. (Code Civ. Proc., § 2031.320, subd. (a); Dept. 6 Courtroom Information [“Parties are required to meet and confer in person, by telephone, or by video conference before filing any motion”].) 

Summary of Arguments 

Defendant Frank seeks to compel compliance with Plaintiff’s statement of compliance provided in response to Frank’s document production request served on November 21, 2023, and to which the Court ordered Plaintiff to provide responsive documents on April 29, 2024. Frank contends that in late May, Plaintiff produced the following documents in response to 47 categories of documents: a two-page letter/statement from Naura Kassis; 11 pages of medical records; and three pictures. (Kraft Decl., ¶ 7; Ex. D.) No other documents were produced. (Kraft Decl., ¶ 7.) Plaintiff contends that there is no reasonable way the documents Plaintiff produced constitute the complete universe of documents reasonably calculated to lead to the discovery of admissible evidence in this matter. 

Analysis 

The Court finds that the instant motion is made on improper grounds. The motion is made pursuant to CCP § 2031.320, which concerns a party’s failure to comply with a statement of compliance. Here, there is no evidence before the Court that Plaintiff provided a statement of compliance. 

However, even if the Court were to consider this as a motion to compel further responses to the Request for Production of Documents. The Court finds Defendant Frank’s motion unavailing. Frank’s arguments that more documents must exist because of the number of categories of documents requested is speculative. While it seems plausible that more documents would exist than the amount produced, that does not necessarily mean they do exist. If they did, the Court would need more evidence from Frank that they do exist. For example, if the documents produced evidenced the existence of other relevant documents then there would be a proper basis for compelling further responses, but Frank has not demonstrated that that is the case. 

For the foregoing reasons, the Court DENIES the motion to compel compliance. 

CONCLUSION

The Court DENIES Defendants Frank Flores and Lydia Flores’ motion for terminating sanctions, but GRANTS the alternative motion for monetary sanctions in the amount of $811.65. Plaintiff and her attorney of record must pay said monetary sanctions to counsel for Defendants within 20 days of the Court’s order. 

The Court DENIES Defendant Frank Flores’ motion to compel compliance per Code of Civil Procedure section 2031.320, subdivision (a) and for monetary sanctions. 

            Defendants Frank Flores and Lydia Flores are ordered to give notice of the Court’s ruling within five calendar days of this order.