Judge: Michael E. Whitaker, Case: 20STCV08027, Date: 2023-01-20 Tentative Ruling

Case Number: 20STCV08027    Hearing Date: January 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

            Defendant Katy Ryan Callas (Defendant) moves to dismiss the complaint of Plaintiff Peggy Frazier Hartman (Plaintiff) as a terminating sanction.  Additionally, Defendant seeks monetary sanctions in connection with the motion. 

            On December 15, 2022, Plaintiff filed an untimely opposition to the motion.  Thus, at the hearing on December 15, 2022, the Court continued the hearing to permit Defendant time to file a reply to the opposition.  Thereafter, Defendant filed a reply on January 9, 2023. 

ANALYSIS

When a party misuses the discovery process by disobeying a court order to provide discovery, the court in its discretion may impose a terminating sanction by striking a party’s pleading or dismissing the action of the party.  (Code Civ. Proc., §§ 2023.010, subd. (g), 2023.030, subds. (d)(1) & (d)(3); 2030.290, subd. (c), 2031.300, subd. (c).) 

California discovery law authorizes a range of penalties for a party's refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions.  A court has broad discretion in selecting the appropriate penalty, . . . . Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly.  A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party's fundamental right to a trial, thus implicating due process rights.  The trial court should select a sanction that is tailored to the harm caused by the withheld 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.

(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [cleaned up].)  Equally important, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Here, on September 21 and 22, 2022, the Court ordered Plaintiff to serve verified responses, without objections to Defendant’s requests for production of documents, special interrogatories, and form interrogatories, and to pay monetary sanctions in the amount of $1430 to Defendant within 30 days of notice of the Court’s orders. (See September 21 and 22, 2022 Minute Orders.)  Defendant gave Plaintiff notice of the orders on September 22 and 23, 2022, electronically.  Plaintiff thus had until October 13, 2022, to serve responses in compliance with the Court’s order of September 21 and 22, 2022, and pay the monetary sanctions.

As of the filing date of the motion, Plaintiff had not served responses in compliance with the Court’s orders of September 21 and 22, 2022.  Plaintiff has thus disobeyed this Court’s orders of September 21 and 22, 2022, respectively. 

In opposition, Plaintiff states that since Defendant’s filing of the instant motion, Plaintiff has fully complied with the previous court orders compelling answers to form interrogatories, set one, special interrogatories, set one, and demand for production of documents.  Further Plaintiff states that she has sent Defendant’s counsel a cashier’s check for $1,430 regarding the monetary sanctions as ordered by the Court. 

In reply, Defendant confirms that Plaintiff has paid the $1,430.00 in monetary sanctions by way of cashier’s check which has been received by Defendant’s counsel.  However, Defendant reports that Plaintiff has served only unverified discovery responses and thus is still compliant with the Court’s orders.

Before imposing a terminating sanction, a trial court should weigh a variety of factors including “whether a sanction short of dismissal or default would be appropriate to the dereliction.”  (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 797.)    

[T]he trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion. Thus, we will reverse the trial court only if it was arbitrary, capricious, or whimsical in the exercise of that discretion. As pertinent here, monetary sanctions, in an amount incurred, including attorney fees, by anyone as a result of the offending conduct, must be imposed unless the trial court finds the sanctioned party acted with substantial justification or the sanction is otherwise unjust. However, terminating sanctions are to be used sparingly because of the drastic effect of their application. Thus, under the statutory scheme, trial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective.

(Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191–192 [cleaned up], disapproved of on other grounds by Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493.)   Here, the Court finds that a terminating sanction is unwarranted and not narrowly tailored to protect Defendant.  This is not an extreme case disobedience of a trial court’s orders -- there has been partial compliance with the Court’s orders of September 21 and 22 including the payment of monetary sanctions and service of responses to the underlying discovery, albeit unverified.  Under the circumstances, the Court finds that the lesser sanction requested by Defendant, monetary sanctions, is warranted to obtain Plaintiff’s complete compliance with the Court’s prior orders – to wit the service of the attendant verifications. 

As such, when a party misuses the discovery process by disobeying a court order to provide discovery, the court in its discretion may impose monetary sanctions.  (Code Civ. Proc., §§ 2023.010, subd. (g), 2023.030, subd. (a); 2030.290, subd. (c), 2031.300, subd. (c).)  Without complete compliance with the September 21 and 22 orders, the Court finds that Plaintiff has disobeyed such orders, warranting further monetary sanctions.  Accordingly, the Court will impose monetary sanctions against Plaintiff in the amount of $1311.65, which represents five hours of attorney time to prepare the moving and reply papers, and attend the hearings at $250 per hour, plus the motion filing fee of $61.65, provided that Plaintiff’s verifications are not served as ordered below. 

CONCLUSION AND ORDER

The Court orders Plaintiff to serve by personal delivery verifications attendant to the responses to the requests for production of documents, special interrogatories, and form interrogatories on or before February 3, 2022. 

If Plaintiff fails to serve such verifications on or before February 3, 2023, the Court orders Plaintiff to pay monetary sanctions in the amount of $1,311.65 to Defendant, by and through counsel for Defendant, on or before March 3, 2023. 

In short, the Court grants in part Defendant’s motion for sanctions as set forth above.  Defendant shall provide notice of the Court’s orders and file a proof of service of such.