Judge: Lynette Gridiron Winston, Case: 23PSCV01043, Date: 2024-01-18 Tentative Ruling

Case Number: 23PSCV01043    Hearing Date: March 19, 2024    Dept: 6

CASE NAME:  Mohamad Tavana v. John Dieterich 

Defendant John Dieterich’s Motion for Terminating Sanctions, and Request for Monetary Sanctions in the Sum of $2,452.50 against Mohamad Tavana and his Attorney of Record, Victor Otten, Esq. and Otten Law Group, APC, Jointly and Severally 

TENTATIVE RULING 

The Court DENIES without prejudice Defendant John Dieterich’s motion for terminating sanctions and request for monetary sanctions. 

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

BACKGROUND 

This is a defamation action. On April 10, 2023, plaintiff Mohamad Tavana (Plaintiff) filed this action against defendant John Dieterich (Defendant) and Does 1 through 25, alleging causes of action for Defamation and Slander, Violation of Civil Code § 1708.7. Stalking [sic], Tortious Interference with Contractual Relations, and Intentional Infliction of Emotional Distress. 

On January 18, 2024, the Court granted Defendant’s motions to compel Plaintiff to provide responses to Defendant’s written discovery requests. On February 15, 2024, Defendant filed a motion for terminating sanctions and request for monetary sanctions. The motion is unopposed. 

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. (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; 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.’” (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.) 

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           

            Defendant seeks an order imposing terminating sanctions and for an order imposing monetary sanctions against Plaintiff and Plaintiff’s counsel of record due to Plaintiff’s failure to obey the Court’s order issued on January 18, 2024. Defendant contends Plaintiff has not served objection-free verified responses or paid the monetary sanctions as ordered. (See Forberg Decl., ¶ 4.) Defendant seeks an order striking Plaintiff’s complaint[1] and entering default judgment. 

            The Court finds there are some issues with Defendant’s motion. First, Defendant’s February 13, 2024 email to Plaintiff’s counsel states that Plaintiff had until February 15, 2024 to provide the verified objection-free discovery responses. (Forberg Decl., Ex. B.) Defendant nevertheless still filed the motion on February 15, 2024. (Id.) Defendant’s motion is therefore premature. Second, in the order issued on January 18, 2024, the Minute Order inaccurately gave Plaintiff and Plaintiff’s counsel 60 days to serve verified responses to discovery without objection. (Minute Order (1/18/24).) Thus, according to such Order, Plaintiff and Plaintiff’s counsel still had approximately 30 days to comply with that part of the Court’s order when Defendant filed this motion on February 15, 2024.[2] Third, Defendant also did not comply with the January 18, 2024 order. Defendant was ordered to give notice of the Court’s ruling, but no such notice has been filed with the Court. (See Order re: Tentative Ruling (1/18/24).) 

            However, the Court also notes that there were discrepancies between its minute order issued on January 18, 2024, versus its order that it issued on the same day. The minute order inadvertently mixed up the deadlines, providing that Plaintiff had 60 days to provide verified objection-free responses to Defendant’s written discovery and 20 days to pay monetary sanctions, instead of providing the correct deadlines of 20 days to provide the responses and 60 days to pay the monetary sanctions as set forth in the order re tentative ruling. (See Minute Order (1/18/24); Order re: Tentative Ruling (1/18/24).) The Court infers that Defendant relied on the order on the tentative ruling instead of the Court’s minute order in proceeding with this motion. (See Forberg Decl., Ex. A.) These discrepancies have since been corrected. 

            Further, the Court does not find that there has been a willful failure to serve the discovery responses. Defendant produced emails from Plaintiff’s counsel attempting to provide the discovery responses and indicating that the documents were too large to email. Plaintiff’s counsel also indicated that medical issues had prevented him from providing the discovery responses sooner. 

            Based on the foregoing, the Court DENIES without prejudice Defendant’s motion and request for monetary sanctions. 

CONCLUSION 

The Court DENIES without prejudice Defendant John Dieterich’s motion for terminating sanctions and request for monetary sanctions. 

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