Judge: Margaret L. Oldendorf, Case: 21GDCV00092, Date: 2022-10-13 Tentative Ruling

Case Number: 21GDCV00092    Hearing Date: October 13, 2022    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION  

            The operative Second Amended Complaint alleges an oral contract pursuant to which Plaintiff Michelle Moore, LLC, dba Bober Tea (Bober Tea) would pay Defendant Wikicart, LLC (Wikicart) to develop software for self-checkout kiosks at Bober Tea’s retail establishments. It is alleged that Defendant Aigens, Inc. (Aigens) ratified and adopted the contract and is the successor in interest to Wikicart under the contract. Bober Tea alleges it paid the full contract price of $13,718.42 but that no software was developed or provided. Bober Tea sues for breach of contract.

            At issue here is Defendants’ unopposed motion for terminating sanction. For the reasons set forth below, the motion is granted.

II.        LEGAL STANDARD

            Code Civ. Proc. §2023.010 identifies the various types of sanctionable discovery conduct. The list includes subdivisions (d), failure to respond to an authorized method of discovery, and (g), disobeying a court order to provide discovery.

            Code Civ. Proc. §2023.030 (d) provides for the imposition of a terminating sanction.

            “When a party fails to respond to the opposing party’s interrogatories, the court should begin by imposing monetary sanctions and ordering the party to respond. (See § 2030.290, subd. (c).) ‘If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.’ (Ibid.) In general, a court may not impose issue, evidence, or terminating sanctions unless a party disobeys a court order. (See Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 277, 26 Cal.Rptr.3d 831, disapproved on another ground by Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273, 91 Cal.Rptr.3d 516, 203 P.3d 1113.) ‘The statutory requirement that there must be a failure to obey an order compelling discovery before the court may impose a nonmonetary sanction for misuse of the discovery process provides some assurance that such a potentially severe sanction will be reserved for those circumstances where the party’s discovery obligation is clear and the failure to comply with that obligation is clearly apparent.’ (New Albertsons, supra, 168 Cal.App.4th at p. 1423, 86 Cal.Rptr.3d 457.) In addition, terminating sanctions are appropriate only if a party’s failure to obey a court order actually prejudiced the opposing party. (See Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669–670, 157 Cal.Rptr. 212.)” Moofly Productions, LLC v. Favila (2020) 46 Cal.App.5th 1, 11.

III.      ANALYSIS

            A. Relevant Procedural History

            In March 2022, Wikicart and Aigens jointly propounded three sets of discovery on Bober Tea: Form Interrogatories, Special Interrogatories (88) and Requests for Production of Documents (43). When the time for responding expired, defense counsel sent a meet and confer letter to Plaintiff’s counsel and followed up with a telephone call. (Declaration of Kari Keidser, ¶¶ 7, 8.) According to Keidser, Plaintiff’s counsel indicated that he had had no communication with his clients and was planning to substitute out. A substitution of attorney was filed June 9, 2022. The following week, Defendants served a Motion to Compel Responses to Interrogatories and a Motion to Compel Responses to Requests for Production on Bober Tea’s new counsel. When no opposition was received, defense counsel sent a meet and confer letter, which went unanswered.

            Defendants’ unopposed motions to compel were heard and granted July 20, 2022. Bober Tea was ordered to provide responses within 20 days. As of the filing of this motion on September 14, 2022, Defendants had not received responses to any of the outstanding discovery. (Keidser Declaration, ¶14.)

            B. Imposition of a Terminating Sanction is Warranted

            The Civil Discovery Act provides that parties to a lawsuit are entitled to engage in discovery. (Code Civ. Proc. §2017.010.) Having initiated this litigation, Bober Tea should rightly have expected that Wikicart and Aigen would propound discovery on it, which they did. It was Bober Tea’s obligation to respond to that discovery. Its failure to do so, even in the face of a court order, constitutes an abuse of the Act. Given this failure, Defendants are entitled to the relief requested.

            Trial courts are generally urged to issue sanctions incrementally, starting with monetary and ending with a terminating sanction. Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605. Here, however, there is no indication that a lesser sanction would have any meaningful effect. Bober Tea has not only failed to provide any discovery responses, it failed to oppose the underlying motions to compel discovery responses, failed to oppose the present motion for terminating sanction, and failed to respond to the most recent meet and confer letter. It appears that Bober Tea has abandoned this litigation. Further, while a terminating sanction is only appropriate where the failure to comply with discovery obligations has been willful (Biles v. Exxon Mobile Corp. (2004) 124 Cal.App.4th 1315, 1327), the facts and circumstances demonstrate such willfulness. Finally, Bober Tea’s failure to answer Defendants’ basic contention interrogatories is inherently prejudicial to them. Consequently, the motion is granted.

            Defendants’ request in the alternative for issue or evidence sanctions is denied. Their request for monetary sanctions is denied as well; Defendants are receiving the ultimate relief in obtaining dismissal of this action.

IV.      CONCLUSION

            Motion by Wikicart and Aigen for imposition of terminating sanction is granted pursuant to Code Civ. Proc. §2023.030(d)(3). This action is dismissed. Defendants are ordered to provide notice.           

Dated:                                                            ______________________________________                                                                                           MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT