Judge Lynne M. Hobbs, Case Number: 22STCV40378, Date: 2024-06-26 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV40378, Date: 2024-06-26 Tentative Ruling

Case Number: 22STCV40378 Hearing Date: June 26, 2024 Dept: 61

XINWU CHENG vs CITY OF FONTANA, et al.

TENTATIVE

Plaintiff Xinwu Cheng’s Motion to Strike Portions Defendant City of Fontana’s Answer and for Other Discovery Sanctions is DENIED.

Defendant to provide notice.

DISCUSSION

The court may impose terminating sanctions, include an order striking pleadings, and order dismissing an action, or an order rendering judgment by default against a party, for conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030.) This conduct include “[f]ailing to respond or to submit to an authorized method of discovery,” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)

Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

Plaintiff Xinwu Cheng (Plaintiff) has filed what is nominally a motion to strike portions of the answer of Defendants City of Fontana and Andrew Larson (Defendants), when the motion is more accurately described as one for terminating, issue, and evidentiary sanctions for discovery misconduct, based on violation of this court’s September 25, 2023 order compelling further responses to certain interrogatories.

In that prior order, this court ruled that further responses were required as to Form Interrogatory No. 15.1, as it applied to Defendants’ affirmative defenses No. 7, 11, 13, 14, 18, and 20, and Form Interrogatory No. 17.1 as it applied to Requests No. 21 and 22, on the grounds that Defendants’ statement of facts supporting each defense consisted of a “conclusory recitation of the defense itself,” without underlying facts. (See 9/25/23 Ruling.)

Since the order on that previous motion, Defendants have provided further responses, outlining the basis for Affirmative Defenses No. 7, 11 and 13:

Fontana Police Department officers were assisting Officer Martinez who is currently assigned to the Los Angeles Drug Enforcement Agency Task Force as a Task Force Officer. Fontana officers had information from Officer Martinez that a narcotics trafficker resided at 57 Wheeler Avenue, Arcadia, California and that the suspect regularly transports illegal narcotics or narcotics proceeds in the area. Further, officers had information that the narcotics trafficker was an unknown Asian male driving a blue Toyota Rav 4, California license plate 8WNK223. Officers set up surveillance at the apartment complex and located the suspect's Toyota, which was occupied by an unknown Asian male adult. Officers observed the Toyota exit the apartment complex and followed it to a different apartment complex, approximately one mile away. The Asian male exited the Toyota and entered the complex where he stayed approximately twenty minutes. The Asian male then led officers back to 57 Wheeler Avenue where the officers conducted a traffic stop. The unknown Asian male exited the vehicle and was identified as Xinwu Cheng. Mr. Cheng verbally consented to a search of the vehicle and his apartment. Discovery is on-going and Responding Party reserves the right to amend or update this response, as necessary.

(Le Decl. Exh. K.)

Plaintiff’s motion for terminating and other sanctions is based on the argument that Defendants have willfully failed to specify the “information from Officer Martinez” that supported their belief that a narcotics trafficker lived at the relevant address and “regularly transports illegal narcotics or narcotics proceeds in the area.” (Motion at pp. 5–7.) Plaintiff also seeks $7,165.00 in monetary sanctions, representing 20.3 hours of attorney work at $350 per hour. (Motion at p. 11.)

Defendant in opposition argues that the present motion was not served, and fails to abide by the timing rules ordinarily applicable to motions to strike laid out in Code of Civil Procedure § 430.40. (Opposition at pp. 3–4.) Defendants also argue that there is no basis to strike any affirmative defenses, as they allege no “irrelevant, false, or improper matter.” (Code Civ. Proc. § 436, subd. (a).)

Defendants’ arguments concerning the procedural posture of this motion are unavailing, as the motion is readily recognizable as one for terminating sanctions in response to alleged discovery misconduct, not a motion to strike under Code of Civil Procedure § 436. Moreover, despite the purported lack of service in the original motion, the motion was since continued and re-served on February 28, 2024.

However, no sanctions are warranted. Plaintiff has not identified any court order violated by Defendants’ interrogatory responses here. The responses that were the subject of the prior motions consisted of little more than terse invocations of probable cause, good faith, and Plaintiff’s alleged “involve[ment] in criminal activity.” (Le Decl. Exh. G.) The amended responses contain more detailed information concerning the nature of Defendants’ surveillance, the suspected crime, and the source of the relevant information, namely Officer Martinez and the DEA Task Force. No prior order or motion in this case has been directed toward the specific disclosure of the facts communicated by Martinez to Defendants regarding the suspected criminal activities of Plaintiff. The fact that such information was not provided in response to a broad “all facts” interrogatory is no basis, in the absence of a prior order, for the sanctions that Plaintiff seeks. These very responses provide the factual basis upon which further inquiries may be made. If Plaintiff wishes to know what information led Defendants to initiate the surveillance on the date in question, he may draft discovery to this purpose.

The motion is DENIED.