Judge: Margaret L. Oldendorf, Case: EC059570, Date: 2023-03-30 Tentative Ruling

Case Number: EC059570    Hearing Date: March 30, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION AND PROCEDURAL HISTORY

            This is an action by an employee against her former employers to collect unpaid wages. Plaintiff Iris Manuel was formerly employed by Defendants Vardoui Madatian, Robert Madatian, and their businesses Rose Home Health Agency, Inc. and Glendale Home Healthcare, Inc.

Manuel alleges she was employed from November 2011 to March 2012, the last month of which she was on vacation. When she returned from vacation, she was told her services were no longer needed. Manuel alleges she was not paid all wages owed to her. She alleges claims for failure to pay for all days worked, failure to pay overtime, waiting time penalties, failure to provide accurate itemized wage statements, and related claims.

Defendants, represented by counsel, filed a joint answer on March 18, 2013.

In late May and early June 2013, Manuel filed 12 motions to compel further responses, three as to each Defendant. The motions sought further responses to Form Interrogatories, Set One (Employment), Requests for Production of Documents (Set One), and Requests for Admission (Set One). The earliest of the hearing dates for the discovery motions was July 19, 2013. On July 17, 2013, Rose Home Health filed a notice of bankruptcy stay. At the July 19 hearing the Court continued all the discovery motions, those set for hearing that day and others set for dates in August, to September 13, 2013.

On July 26, 2013, counsel for Defendants filed a substitution of attorney, leaving Vardoui and Robert self-represented.

The September 13, 2013 minute order states that the Court had received evidence of the bankruptcy’s dismissal. In a lengthy order, the Court largely granted the motions (except as to one request for admission), gave a time for providing further responses, and issued monetary sanctions against each defendant.

On November 15, 2013, the Court heard and granted defense counsel’s motions to be relieved as counsel as to Rose Home Health and Glendale Home Health.

Also on November 15, 2013, in light of the fact that none of the 12 discovery orders had been complied with, the Court set an OSC re: striking Defendants’ answers. Defendants, all of whom were then self-represented or without counsel, filed a response.

On January 7, 2014, Defendants’ answers were stricken. On February 7, 2014, default was entered against all Defendants. Default judgment was entered April 18, 2014.

For the subsequent three years all activity in this case was focused on enforcement of judgment. In November 2017, Robert Matadian’s motion for relief from the default judgment was granted. In January 2019, Vardoui’s motion for relief from the default and default judgment was granted, with the judgment being set aside as void.

Since that time, Manuel has filed an amended pleading and Defendants have each answered. But Defendants have yet to comply with the September 2013 discovery order. Based thereon, Manuel now seeks terminating sanctions.

Defendants oppose the motion on three grounds: (1) Manuel lost her chance to seek this sanction because the discovery cut-off has passed; (2) Defendants have already been sanctioned for their non-compliance (during a time they were not represented by counsel) and a second set of sanctions would be unjust; (3) Defendants’ failure to provide the hundreds of supplemental responses required by the September 2013 order was not willful or intentional and does not merit terminating sanctions. None of these arguments compels denial of the motion. However, in light of the very unusual procedural history of this case and in the interest of justice, the request for a terminating sanction is granted but in a modified form. This action is stayed 30 days to permit Defendants to comply with the order.

Defendants opposed this motion in part by arguing that a paralegal/disbarred attorney was supposed to be helping them with the discovery responses back in 2013, but failed to do so. Manuel’s reply brief offers new evidence on the disbarred attorney. By ex parte application, Defendants sought leave to file a sur-reply to respond to the new evidence. The ex parte was denied as the new evidence is not relevant to any issue to be decided on this motion.  

For the reasons that follow, the motion is granted in part, in the form of a stay upon Defendants’ right to defend the action until responses are provided to the outstanding discovery.

II.        DISCUSSION

            The Discovery Act contains a structure for accelerating sanctions when discovery is not complied with. In the September 2013 discovery order, for example, each defendant was ordered to pay monetary sanctions pursuant to the sections governing each type of discovery at issue: interrogatories, requests for production, and requests for admission. Each of those sections also provides for more serious sanctions (issue, evidence, termination) if and when the discovery order is disobeyed.

            Code Civ. Proc. §2030.300(e) provides such relief as to interrogatories. It provides, “If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

            Code Civ. Proc. §2031.310(i) provides for the relief requested as to requests for production. It provides, “Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

            The motion cites neither of these sub-sections. Instead, it cites Sections 2030.290(c) and 2031.300(c). The motion fails at the outset as it does not cite proper legal authority for the relief requested. However, rather than deny the motion for this procedural defect, the Court has decided to entertain the motion on the merits as it appears that the parties are at an impasse.

            This case has a very lengthy and quite unusual procedural history.  It has only been with this bench officer for a few months and already there have been motions by the Defendants to dismiss for lack of prosecution; and now this motion for terminating sanctions, which is based on an order issued in 2013. Defendants were not represented at the time the September 2013 order issued, and for many years thereafter. They have counsel now, however. It is Manuel’s belief (and accusation) that the Defendants have deliberately failed to comply with the September 2013 order, such that terminating sanctions are warranted. Defense counsel, who is new to the case, takes the position that Manuel’s counsel has been unreasonable in demanding responses to the 12 motions on a very short timeline; he also takes the position that discovery is closed. 

            Regarding the discovery cut-off, Manuel is correct that terminating sanctions may issue after the discovery cut-off. But here, discovery has not closed because the trial date was never continued or postponed: it was vacated. Trial was set for October 18, 2021, but that date was vacated on August 16, 2021. Code Civ. Proc. §2024.020(b) provides that a “continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Here, the trial date was vacated prior to the discovery cut-off with no new trial date being set. A new trial date was only recently re-set. All discovery cut-off dates are to be measured from that date.

            As noted above, this motion fails to cite proper legal authority for issuing terminating sanctions. The Court deems the motion to have been made pursuant to Code Civ. Proc. §§ 2030.300(e) and 2031.310(i).  Sanctions pursuant to §2023.030(d) are authorized here. Defendants’ argument that they should not be sanctioned a second time for having failed at their discovery obligation ignores the incremental nature of the sanctions allowed by the Discovery Act. “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ‘ “Discovery sanctions ‘ “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” ’ (Citation.)” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992. Here, having failed to comply with their discovery obligations, Defendants were ordered to provide supplemental responses and monetary sanctions were imposed. As Defendants have failed to comply with that order, a further, incremental sanction is authorized.

            Defendants’ argument that they were unrepresented by counsel at the time and did not intentionally disobey the discovery order assumes that evidence of intentional conduct is required. It is not. Willful disobedience, while necessary for contempt, is not required for terminating sanctions. Code Civ. Proc. §§2030.300(e), 2031.310(i) use the words “fails to obey.” Section 2023.010(g) uses the word “disobeying.” Willful disobedience is not a requirement. Purian Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 883-884 (Puritan).

            Having concluded that additional sanctions are warranted, the question is how exactly such sanction should be imposed. Section 2023.030(d) provides that a “terminating” sanction may be imposed four ways: (1) an order striking out the pleadings; (2) an order staying further proceedings by that party until an order for discovery is obeyed; (3) an order dismissing the action; or (4) an order rendering a judgment by default against that party. Bearing in mind its obligation to impose sanctions that are just and appropriate, the Court determines that it would further the interest of justice to permit Defendants an opportunity to provide responses to the long overdue discovery. Consequently, option (2) is selected.

            “The most important and oft-repeated limitation on the trial court's discretion is that it must make such orders as are just. (§ 2034, subd. (b)(2).) ‘The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ (Citation.)” Puritan, supra, 171 Cal.App.3d at 884. “The sanction of dismissal or the rendition of a default judgment against the disobedient party is ordinarily a drastic measure which should be employed with caution. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 793, 149 Cal.Rptr. 499.) The sanction of dismissal, where properly employed, is justified on the theory the party’s refusal to reveal material evidence tacitly admits his claim or defense is without merit. (Ibid.; Kahn v. Kahn, supra, 68 Cal.App.3d at p. 382.)” Ibid.

            At this juncture, a terminating sanction striking Defendants’ answer and entering their defaults is not warranted. An appropriate sanction on the facts and procedural history here is a stay. This matter is stayed as to any further proceeding by Defendants, for the purpose of providing them with time to comply with the September 2013 order and avoid a more drastic sanction. This stay is imposed for thirty days, after which the need for further incremental sanctions will be reassessed.  

            As to Manuel’s argument that Defendants have failed to pay the sanctions awarded in the September 2013 order, no further relief is warranted. Monetary sanction orders are enforceable as judgments. Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.

            Manuel’s request for additional monetary sanctions is also denied. Code §§2030.300(e) and 2031.310(i) does provide for monetary sanctions in lieu of or in addition to other sanctions. Here, a stay is being imposed on Defendants in lieu of a monetary sanction. The Court does not find additional monetary sanctions to be warranted.

III.      CONCLUSION AND ORDER

             Manuel’s motion for a terminating sanction against Defendants is granted in part. Pursuant to Code Civ. Proc. §2030.300(e), §2031.310(i), and §2023.030(d)(2) a sanction is issued staying this proceeding as to Defendants. Defendants are prohibited from continuing to proceed with the litigation other than to comply with the September 2013 discovery order. This stay is imposed for a period of thirty days.

            An OSC regarding compliance with the September 2013 order is set for __________________, at ________.

            Plaintiff is ordered to give notice of this ruling.

Dated:                                                                        _______________________________

                                                                                          MARGARET L.OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT