Judge: Mark H. Epstein, Case: 20SMCV01164, Date: 2023-05-02 Tentative Ruling

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Case Number: 20SMCV01164    Hearing Date: May 2, 2023    Dept: R

This is a malpractice action by plaintiff against her former counsel.  It was originally filed in San Luis Obispo County, but it was transferred to this county in August 2020.  Defendant has moved to strike the complaint and dismiss the action

Last year, the court ruled on an application concerning discovery responses.  There was a dispute between counsel regarding service.  Plaintiff’s counsel asserted that responses were mailed and attached them to the papers; defendant disputed that, saying that the responses were backdated, which is why they had not been attached to the various prior communications.  Further, the verifications were by counsel, not plaintiff—something that is improper unless counsel is able to verify the actual factual assertions in the responses (something that plaintiff’s counsel has not said could be done).  The court did not resolve the issue, but said it would if it had to do that and further, that if defense counsel’s statements were accurate, the ethical violation was substantial enough to perhaps warrant referral to the bar.  The responses were also deficient, and not only due to the verification.  The court ordered plaintiff to serve properly verified responses without objection no later than June 17, 2022, as well as to pay sanctions.  The court also ordered a detailed service protocol to avoid similar issues in the future.

Defendant now moves for terminating sanctions on the ground that plaintiff failed to abide by the court’s order.  Rather, according to defendant, on June 17 at 7:45 pm, plaintiff asked for an extension until Monday, June 20.  Defendant agreed, but no responses were served.  And further, as of June 21, 2022, when the motion was filed, there was still no response.  On the morning of the original hearing date for this motion, the court was informed that plaintiff had removed the action to federal court and the hearing was vacated.  On March 1, 2023, a notice of remand was filed restoring jurisdiction to this court.  After a further status conference, the court asked for further briefing, which both parties have filed.

Having reviewed the filings, the court will DENY the request to strike the complaint, which the court views as a request for a terminating sanction.  Generally, terminating sanctions are sanctions of last resort after lesser sanctions have failed.  (J.W. v. Wtchtwoer Bible & Tract Society, (2018) 29 Cal.App.5th 1142.)  The court will give plaintiff one last chance to comply.  The reason is that plaintiff contends that it has paid the monetary sanctions and provided compliant responses. 

The court notes that the removal seems to have been made in bad faith.  According to the federal court, “It appears to this Court that the Notice of Removal was purely an attempt to avoid the repercussions of Nauta’s conduct (or the conduct of their counsel) in front of the State Court, which the State Court believed was troublesome.  The line of zealous advocacy here may have crossed over into the land of misconduct.” 

The court notes that, given plaintiff’s past behavior, this is the wrong time to throw stones at the defense.  The court is, frankly, utterly unmoved by plaintiff’s claim of holding the moral high ground on the merits.  This is not a merits motion; it is a discovery motion.  Plaintiff and counsel ought not confuse the two because on discovery, plaintiff’s conduct has been abysmal.  There will come a time to hear the merits—on summary judgment or at trial—and at that point, the party with the just cause will prevail. Plaintiff and her counsel are warned, however, that she will never get to the merits if she continues to respond to discovery as she has.

That said, if defendant believes that the current responses are inadequate, counsel may make an appropriate motion after meeting and conferring.  Plaintiff would be well advised not to allow any such motion to reach this court unless plaintiff has a solid basis to believe she will prevail (although the court is not suggesting that the present responses are inadequate—that matter is not before the court).  At some point plaintiff’s theory that plaintiff is a true victim will not be sufficient given plaintiff’s consistently poor behavior and failure to follow the law, and that time will come the next time there is a discovery motion that looks like willful disobedience by plaintiff.  Further, the court, on its own motion, VACATES the FSC and trial dates.  Plaintiff’s behavior gives the court no reason to believe that this case will be ready for trial in July.  Instead, the court will hold a CMC on July 24, 2023 at 8:30 am in this department.

Defendant’s request for monetary sanctions is GRANTED in the amount prayed, which is $2884.42 and are awarded against plaintiff and plaintiff’s counsel.  It is payable within 30 days.