Judge Martha K. Gooding, Case 21-01231981 2023-07-24 Tentative Ruling

Judge: Martha K. Gooding, Case: 21-01231981, Date: 2023-07-24 Tentative Ruling

Motion for Terminating Sanctions

The Motion by Plaintiffs Carole Stanley and Michael Stanley (“Plaintiffs”) for terminating sanctions or, in the alternative, an order imposing issue and evidence sanctions against Defendants William Morris and Melissa Morris (collectively, “Defendants”) is GRANTED IN PART and DENIED IN PART.

The Motion is GRANTED with respect to Plaintiffs’ requests for certain issue and evidence sanctions, and it is DENIED as to Plaintiffs’ requests for terminating and monetary sanctions.

Code of Civil Procedure (“CCP”) section 2023.030 delineates the various sanctions that may be imposed “against anyone engaging in conduct that is a misuse of the discovery process,” including: monetary sanctions; an issue sanction; an evidence sanction; a terminating sanction; or a contempt sanction.

Failure to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc. § 2023.010, subd. (d).) So, too, is disobeying “a court order to provide discovery.” (Code Civ. Proc. § 2023.010, subd. (g).) “Once a party or witness has been ordered to attend a deposition, or to answer discovery, or to produce documents, more severe sanctions are available for continued refusal to make discovery.” (Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 8:2145, emphasis in original.)

On January 30, 2023, the Court issued an order compelling Defendants to provide responses to Plaintiffs’ first sets of form interrogatories, special interrogatories, and requests for production within ten days of notice of the order. (ROA 90.) Defendants served notice of the ruling on January 31st. (ROA 92.)

Plaintiffs’ counsel attests that, as of the date of the filing of the Motion (i.e., March 3,2023), “Defendants have wholly failed to abide by this Court's order to serve discovery responses. There has been no indication whatsoever that Defendants plan to abide by this Court’s order to serve discovery responses.” (Sorosky Decl. at ¶ 11.)

Plaintiffs’ counsel further attests that, “as a result of Defendants’ utter failure to respond and to participate in the discovery process, the discovery process has not even begun. … This refusal has greatly prejudiced Plaintiffs’ ability to prepare for trial, and moreover, has interfered with this Court’s function to ascertain the truth.” (Sorosky Decl. at ¶ 13.) Trial is set for September 11, 2023.

The Court finds Defendants have violated the Court’ January 30, 2023, discovery order. However, it is unclear whether the violation was “willful” or, possibly, the result of their negligence in failing to update their mailing address with the court (Cal. R. Ct. Rule 2.200). The Court declines to impose terminating sanctions. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496 [terminating sanctions “are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party,” but justified when “record demonstrates repeated violations of stipulations and court orders, a forged document offered as true, and deliberate destruction of evidence pertinent to exposing that fact”].)

The Court notes that Defendants provided a mailing address of 505 San Bernardino Ave., Newport Beach, CA 92663, when they answered. (ROA 25.) Since then, it appears mail is being returned as undeliverable at that address, but Defendants have not filed a change of address form, as they are required to do. (Cal. R. Ct. Rule 2.200 [“An attorney or self-represented party whose mailing address, telephone number, fax number, or e-mail address (if it was provided under rule 2.111(1)) changes while an action is pending must serve on all parties and file a written notice of the change”].) There is no “fraud” or “mistake” when a party’s lack of awareness is due to its own negligence, including where, as here, they “knew of this lawsuit yet chose not to participate in it” and, “[a]mong other things, they failed to provide notices of change to their mailing address.” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 30 [trial court abused its discretion in granting relief from default judgment; “While the trial court's desire to have this case heard on its merits is understandable, defendants forfeited this right by choosing to ignore this case and their responsibilities under the California Rules of Court. Their negligence led to the default and default judgment and does not constitute an exceptional circumstance warranting equitable relief”].) In any event, Plaintiffs’ proof of service reflects that they mailed copies to multiple possible addresses for Defendants, as well as sending courtesy copies to their email addresses.

With that said, the Court finds the record is sufficient to support issue and evidence sanctions. Accordingly, the following issues are deemed established up to and including through trial:

1) On or about November 17, 2018, Plaintiffs, as landlords, entered into a written Residential Lease with Defendants as tenants (the “Lease”) in connection with the property located at 354 Flower Street in Costa Mesa, California (the “Premises”);

2) Defendants breached the Lease;

3) Plaintiffs have performed all of their obligations under the Lease;

4) Defendants ceased making rental payments to Plaintiffs after February 2020 and in total owe Plaintiffs rent for the eleven months during which they remained at the Premises without paying rent. (Code Civ. Proc. § 2023.030, subd. (b).)

Because these issues are deemed established, Defendants are barred from presenting any evidence to counter these issues. Additionally, Defendants are barred from using any documents at trial that would have been responsive to the requests for production of documents propounded by Plaintiffs, which Defendants failed to respond to. (Code Civ. Proc. § 2023.030, subd. (c).)

The Court denies the request for monetary sanctions, because the supporting declaration does not set “forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.) Plaintiffs’ notice of motion and the last sentence of its supporting memorandum ask for monetary sanctions of $4,000 to reimburse them for the cost of bringing this motion, but the supporting declaration fails to set forth any facts supporting this amount or indicating how that amount was determined.

Plaintiffs are ordered to give notice.