Judge: Michael E. Whitaker, Case: 21SMCV00590, Date: 2023-08-11 Tentative Ruling

Case Number: 21SMCV00590    Hearing Date: October 31, 2023    Dept: 207

TENTATIVE RULING

MOTION

            Plaintiff and Cross-Defendant Sound Equity High Income Debt Fund, LLC (“Plaintiff” or “Sound Equity”) moves for terminating and monetary sanctions against Defendant and Cross-Complainant Andre Wegner (“Defendant” or “Wegner”) for failure to comply with the Court’s August 11, 2023 orders, ordering Wegner “to serve verified responses to the FROG, SPROG, and RFP, without objections” and “to pay monetary sanctions in the amount of $1,990 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.”  (August 11, 2023 Minute Order.)

            Wegner has not opposed the motion.

LEGAL STANDARD

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); 2025.450, subd. (h), 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].)

When a party fails to respond to the opposing party's interrogatories, the court should begin by imposing monetary sanctions and ordering the party to respond. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.  In general, a court may not impose issue, evidence, or terminating sanctions unless a party disobeys a court order. 

(Moofly Productions, LLC v. Favila (2020) 46 CalApp.5th 1, 11 [cleaned up] [citing Code Civ. Proc., § 2030.290, subd. (c)].)  However, “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.)

ANALYSIS

            On January 31, 2023, Plaintiff served the FROG, SPROG, RFP, and RFA on Wegner electronically and by mail.  (Shakoori Decl. ¶ 3.)  Wegner did not respond to these requests.  (Shakoori Decl. ¶ 4.)  Plaintiff subsequently sent Wegner three emails to meet and confer regarding the outstanding discovery, but Wegner did not respond.  (Shakoori Decl. ¶¶ 5-7.)  Wegner failed to appear at the May 4, 2023 Status Conference Re: Mediation.  (May 4, 2023 Minute Order.) 

Plaintiff moved to deem admitted the matters specified in the RFA, to compel responses to the FROG, SPROG, and RFP, and for monetary sanctions.  Wegner did not oppose the motions or appear at the hearing.  (August 11, 2023 Minute Order.)  The Court granted Plaintiff’s unopposed motions, deeming the RFA admitted, compelling responses to the FROG, SPROG, and RFP, and ordering Wegner to pay $1,990 in monetary sanctions within 30 days of notice of the Court’s orders.  (Ibid.) 

On August 15, 2023, Sound Equity served Wegner Notice of the Court’s Order, via email and mail.  (Shakoori Decl. ¶ 12.)  Plaintiff did not receive a response from Wegner about the order, the ordered responses, or the monetary sanctions.  (Shakoori Decl. ¶¶ 12, 13.)

Plaintiff now moves for terminating and additional monetary sanctions, for Wegner’s failure to comply with the Court’s August 11, 2023 Orders.  Wegner has not opposed the motion. 

As of the filing date of the motion, Wegner has not complied with the Court’s orders to serve verified responses to the FROG, SPROG and RFP, or pay the monetary sanctions.  Plaintiff has thus disobeyed this Court’s August 11, 2023 Orders.  

Plaintiff is prejudiced by Wegner’s failure to engage in the discovery process, because Plaintiff is unable to discover any critical facts, documents, and percipient witnesses from Wegner relating to Plaintiff’s claims, Wegner’s defenses, and Wegner’s cross-claims against Plaintiff. 

Moreover, Wegner has not opposed the motion, and has thus waived the right to argue that a terminating sanction is unwarranted. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

CONCLUSION AND ORDER

Having found that Wegner has failed to comply with the Court’s August 11, 2023 order, the Court grants Plaintiff’s unopposed motion for terminating sanctions.  As such, under Code of Civil Procedure section 2023.030, subdivisions (d)(1) & (d)(3), the Court strikes Wegner’s Answer to the Complaint filed on July 6, 2021 and dismisses Wegner’s cross-complaint filed July 6, 2021. 

With the Court granting terminating sanctions against Wegner, the Court finds the imposition of monetary sanctions to be moot. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.

DATED:  October 31, 2023                          ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court