Judge Lynne M. Hobbs, Case Number: 23STCV00224, Date: 2024-12-11 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV00224, Date: 2024-12-11 Tentative Ruling

Case Number: 23STCV00224 Hearing Date: December 11, 2024 Dept: 61

BIANCA NICOLE BASILIO, et al. vs USA EXPRESS LEGAL & INVESTIGATIVE SERVICES, INC., et al.

TENTATIVE

Defendant USA Express Legal & Investigative Services, Inc.’s Motions for Terminating Sanctions against Plaintiffs Bianca Nicole Basilio, Lydia Fuller, and Isela Linares are GRANTED, in part, as to Plaintiffs Fuller and Linares, and monetary sanctions are awarded against Fuller and Linares in the amount of $4,950.00. The motion as to Basileo is DENIED.

Plaintiffs 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 includes “[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.)

Defendants USA Express Legal and Investigative Services, Inc., Gina Kazakian, and Haruteun Harry Kazakian (Defendants) seek terminating sanctions against Plaintiffs Bianca Nicole Basileo, Lydia Fuller, and Isela Linares (Plaintiffs), based on their failure to serve further responses and pay monetary sanctions as ordered by the court in its order of June 13, 2024.

That order compelled Plaintiffs to provide further responses to inspection demands within 20 days, i.e. by July 7, 2024. Yet Defendants’ counsel states that when he contacted Plaintiffs’ counsel on July 8, 2024, after no responses were received, he was informed that no responses were being provided because Plaintiffs’ counsel was withdrawing. (Kaufman Decl. Exh. D.)

Defendants acknowledge, however, that this analysis does not apply to Defendant Basileo, who provided responses and verifications July 9, 2024. (Kaufman Decl. ¶¶ 21–24.)

The evident reason for Plaintiffs’ failure to serve the responses ordered by the court are the same as those justifying the withdrawal of their prior counsel. The motion to be relieved as counsel was filed July 9, 2024, shortly after the due date of responses, and was granted on August 9, 2024, three days after Defendants filed the present motions for sanctions. Since that time, on November 8 and 14, 2024, Plaintiffs have filed substitutions of counsel. They have also filed oppositions through new counsel to the present motions on November 26, 2024, indicating that they have not abandoned the litigation. (Thakur Decl. ¶¶ 12–13.)

At the same time, the declaration of Plaintiffs’ counsel does not indicate that further responses have been served as ordered by the court. Although Plaintiffs’ counsel testifies that he is informed and believes that supplemental responses were served by Plaintiffs’ prior counsel, he offers no basis for this assertion, and the only evidence before the court suggests that of the Plaintiffs, only Basileo’s further responses have been served. (Thakur Decl. ¶ 12.)

No sanctions of any kind are appropriate against Plaintiff Basileo, who Defendants acknowledge provided verified supplemental responses on July 9, 2024. Although tardy in relation to this court’s order, Defendants were not so prejudiced by this violation as to warrant additional sanctions or the motion practice necessary to obtain them.

As to Plaintiffs Fuller and Linares, only monetary sanctions, not terminating sanctions, are proper here. The delay in serving further responses is the product of the breakdown of Plaintiffs’ prior attorney-client relationship and the subsequent delay in finding new counsel. This delay warrants additional monetary sanctions against Plaintiffs. But there is little reason to believe such sanctions will prove ineffective in obtaining further responses.

Plaintiffs’ non-payment of monetary sanctions already ordered by the court is not a basis for further penalties, contrary to Defendants’ argument, because awards of monetary sanctions are immediately enforceable as though enforcing a monetary judgment.

Nor is a terminating sanction necessary in order to enforce a monetary order. Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws. These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction. Unawareness of this remedy may explain why terminating sanctions are often sought when monetary sanctions are unpaid. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615, internal citations omitted.)

Defendants seek monetary sanctions in the amount of $4,950.00 against each Plaintiff, representing nine hours of attorney work at $550 per hour for each motion, for a total sanctions request of $14,950.00 across three motions. (Kaufman Decl. ¶ 26.) Sanctions against Basileo are not warranted and those identified with respect to Fuller and Linares appear substantially duplicative of one another. The court awards monetary sanctions in the reduced amount of $2,750.00, jointly against Fuller and Linares.

Accordingly, Defendants’ motion as to Plaintiffs Fuller and Linares are GRANTED in part, and monetary sanctions are awarded against Plaintiffs Fuller and Linares in the amount of $2,750.00, payable in 90 days. The motion as to Basileo is DENIED.