Judge: Mark H. Epstein, Case: 21SMCV01749, Date: 2022-12-14 Tentative Ruling

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Case Number: 21SMCV01749    Hearing Date: December 14, 2022    Dept: R

The motion for terminating sanction is DENIED.

Defendants bring the motion based on their claim that plaintiffs have been ignoring discovery and have failed to follow the court’s discovery orders.  Plaintiffs’ counsel states that his email had been compromised earlier this year and therefore he had to switch his email account before the discovery at issue was served and before the court’s order was made.  Plaintiffs’ counsel contends that he was therefore unaware of the discovery, unaware of any efforts defendants had made to obtain a response, unaware of the motion to compel (which would explain why the motion was not opposed), and unaware of the court’s order.  Plaintiffs’ counsel states that notice was first received when the instant motion was served—this time using the new email address.  Plaintiffs’ counsel also notes that he had been communicating with the defense using the new email since July 7, 2022.  This explanation certainly is sufficient to establish that there was no willful violation of the discovery statute or of any court order.  The court is not inclined to issue any sanctions at all given that defense counsel could easily have attempted to call plaintiffs’ counsel and doing so would have solved this problem entirely.  (Plaintiffs’ counsel, by the same token, should have filed a formal change of address if the email had changed, thereby putting defense counsel on proper notice.)

While the request for terminating sanctions is denied, plaintiffs must sill respond to the outstanding discovery.  Plaintiffs will do so within 14 calendar days of today.  Because this whole problem could have been avoided by picking up the phone and because there was substantial justification for plaintiffs’ position, no additional monetary sanctions are imposed.  The prior sanctions remain in effect, however.  Plaintiffs counsel could have filed a formal change of address form, which would have put defense counsel on formal notice.