Judge Mark A. Young, Case Number: 22SMCV02220, Date: 2023-09-21 Tentative Ruling

If a party fails to obey a court order compelling it to provide a discovery response, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction . . . .” (CCP §§ 2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery process, which includes disobeying a court order to provide discovery, is conduct subject to sanctions. (CCP § 2023.010(g).) Possible sanctions are:

(a) [A] monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct….

(b) [A]n issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) [A]n evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

(d) [A] terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(e) [A] contempt sanction by an order treating the misuse of the discovery process as a contempt of court.

(CCP § 2023.030 [emphasis added].)

The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884 [interpreting former statute dealing with “refusal” to comply].) However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

Plaintiff Seller Partner LLC moves for sanctions against Defendant Scaling Group LLC for its failure to comply with this Court’s September 21, 2023, discovery order. Plaintiff requests that the Court strike Defendant’s answer, enter a default against Defendant, and issue monetary sanctions against Defendant in the sum of $2,060.00.

Plaintiff demonstrates Defendant’s willful disobedience of this Court’s September 21, 2023, order to provide discovery responses. On that date, the Court granted Plaintiff’s motions to compel initial responses as to form interrogatories, special interrogatories, and requests for production of documents. The Court noted that defense counsel admitted that Defendant received the discovery and that since March 2023 there has been virtually no communication between defense counsel and Defendant. (Lampel Decl., ¶ 3.) Counsel was later relieved as counsel of record for this same reason. The Court ordered initial responses to the discovery within 20 days, and issued sanctions in the sum of $1,570.00, inclusive of costs, against Defendant. (Ma Decl., ¶ 8, Ex. B.)

On November 27, 2023, Plaintiff’s counsel attempted to meet and confer with Defendant by sending a letter via certified mail to Defendant’s registered agent requesting that Defendant comply with the Court’s order and provide verified, substantive responses to the outstanding discovery and pay the sanctions imposed by no later than December 11, 2023. (Id., ¶ 10.) Despite this effort, Plaintiff never received initial responses from Defendant. (Id., ¶ 11.) Plaintiff provides that Defendant has not participated in this litigation for approximately nine months, and there is no indication that it will do so in the future. (Id.)

This record demonstrates that Defendant willfully violated the Court’s discovery order. Plaintiff demonstrates that, despite having knowledge of the Court’s discovery order, Defendant has still not responded as ordered by the Court. Furthermore, the record supports a finding that Defendant has abandoned its defense, as its counsel has withdrawn for lack of communication and Defendant has refused to communicate with Plaintiff. (Ma Decl., ¶ 12.) Moreover, Defendant has failed to oppose this motion to explain its disobedience. The Court therefore views Defendant’s disobedience as willful, and that no sanctions less than terminating sanctions would be effective.

Accordingly, the motion is GRANTED. The Court will strike Defendant’s answer and enter default against Defendant. The Court further issues monetary sanctions against Defendant in the reduced total amount of $1,260.00, inclusive of costs, as reasonable attorneys’ fees incurred in bringing the instant motion. (Ma Decl., ¶ 14.)