Judge: Michael E. Whitaker, Case: 21SMCV01495, Date: 2023-10-06 Tentative Ruling

Case Number: 21SMCV01495    Hearing Date: October 6, 2023    Dept: 207

TENTATIVE RULING

MOTION

            Plaintiffs Trinidad Velazquez, Hector Velazquez, and Wilson Acevedo (“Plaintiffs”) move for terminating, or in the alternative, evidentiary, and monetary sanctions against Defendant Craig Chisvin (“Defendant”) for failure to comply with the Court’s July 26, 2023 Order, ordering Defendant to serve verified responses without objections to the Form Interrogatories (“FROG”) served on October 11, 2022 and to pay monetary sanctions of $1,520 within 30 days of notice of the Court’s order.  (July 26, 2023 Order.) 

            Defendant filed an untimely opposition and Plaintiffs have replied.

ANALYSIS

                               I.            Untimely Opposition

            In Reply, Plaintiffs request the Court disregard Defendant’s untimely filed opposition.

Code of Civil Procedure section 1005, subdivision (b) provides:  “All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”  The court has discretion whether to consider late-filed papers.  (Cal. Rules of Court, Rule 3.1300(d).)  

            The hearing in this matter is set for October 6, 2023, making the Opposition papers due on September 25, and Reply papers due September 29.  Defendant did not file the Opposition papers until September 27, at 9:34 p.m., and has offered no explanation for the delay.  Because of Defendant’s delay in filing the Opposition, Plaintiffs effectively had only two days (September 28 and September 29) to review the Opposition, and draft and file the Reply brief. 

            Plaintiffs did, however, timely file a Reply brief, addressing the substance of Defendant’s Opposition, at 1:15 p.m. on September 29. 

            Because Plaintiffs were not prejudiced by Defendant’s untimely Opposition, the Court exercises its discretion in considering the opposition.

                            II.            Terminating Sanctions

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).) 

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]; see also Moofly Productions, LLC v. Favila (2020) 46 CalApp.5th 1 (hereafter Moofly).) 

In Moofly, the Court of Appeal noted that “terminating sanctions are appropriate only if a party's failure to obey a court order actually prejudiced the opposing party.”  (Moofly, supra, 46 Cal.App.5th at p. 11.)  Moofly cites to Morgan v. Ransom as support for this proposition.  In Morgan v. Ransom, the appellate court held that the trial court erred because the interrogatories themselves had not been presented to the trial court, and therefore, there had been no analysis of whether the information sought was actually relevant to any of the issues in the case.  (Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669-670.)  In other words, to the extent the information sought was not relevant to the case, the plaintiff’s failure to provide responses would not have prejudiced the defendant.

In support of the Motion, Plaintiffs point out several other instances of Defendant’s conduct they find objectionable, including that Defendant repeatedly requested extensions of time to respond to the complaint, failed to timely file the answer, resulting in default being taken against Defendant and Chisvin Law Group, APC, which was only ultimately set aside as to Defendant and not Chisvin Law Group, Defendant’s improper subsequent filing of an answer on behalf of both Defendant and Chisvin Law Group, Defendant’s limited availability in scheduling his deposition, and his ultimate failure to appear for his schedule deposition, as well as his inability to attend the mandatory settlement conference.  (Motion, pp. 3-6; Armenta Decl., ¶¶ 3-36.) 

Ultimately, none of those incidents have been deemed an abuse of the discovery process by the Court, and as such, they have no bearing on the Court’s determination of instant motion.

The only conduct at issue involves Defendant’s failure to comply with the Court’s July 26, 2023 Order, ordering Defendant to (1) serve verified responses to the FROG, without objections, and (2) pay monetary sanctions in the amount of $1,520 to Plaintiff (Trinidad Velazquez) through Plaintiff’s counsel, within 30 days of notice of the Court’s order.  Plaintiffs mailed Defendant notice of the ruling on July 26, 2023.  Thus, Defendant’s responses and sanctions were due no later than August 25, 2023.

Defendant concedes in the Opposition that he failed to timely comply with the Court’s July 26, 2023 Order, but represents that Plaintiffs will receive the responses to FROG and the monetary sanctions prior to the hearing on this motion.  (Opposition, 2:26-28; Chisvin Decl., ¶ 4.)  Defendant further urges that the requested terminating sanctions are disproportionate remedies.

The Court finds that Defendant’s failure to timely comply with the Court’s July 26, 2023 Order compelling him to serve verified responses to the FROG without objections constitutes a continuing abuse of the discovery process. (See Code Civ. Proc., § 2023.010, subd. (g).)  However, Plaintiffs do not demonstrate any prejudice they have suffered as a result of Defendant’s failure to timely comply with the Court’s July 26, 2023 Order. 

            In addition, the Court notes that Defendant has not paid the monetary sanctions in the amount of $1520.00 to Plaintiffs as ordered.  But “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.)   The Court therefore denies Plaintiffs’ request for terminating sanctions for non-payment of the monetary sanctions as unwarranted under the circumstances as such request for sanctions seems punitive in nature. 

The purpose of the discovery statutes is to enable a party to obtain evidence under the control of his adversary in order to further the efficient and economical disposition of a lawsuit. Where no answers are filed, a trial judge is empowered to select one of the sanctions authorized by . . . the Code of Civil Procedure.  Where a motion to compel has been granted, and discovery has been delayed or denied, the court must make orders in regard to the refusal as are just.  The penalty 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.  Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause. The sanction of dismissal or the rendition of a default judgment against the disobedient party is ordinarily a drastic measure which should be employed with caution.

(Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 [cleaned up].) 

In short, based upon the record, the Court declines to issue terminating sanctions against Defendant. 

                         III.            Issue and Evidentiary Sanctions

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (Code Civ. Proc., § 2023.040; see generally Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429 [appellate court addresses adequacy of notice of monetary sanctions request].) 

Here, the Court finds Plaintiffs’ notice with respect to their request for issue and evidentiary sanctions to be defective.  Plaintiffs failed to outline in their notice the “designated facts” that should be established in the action as issue sanctions, and did not identify the “designated matters” which should be excluded as evidentiary sanctions.  (See Code Civ. Proc., § 2023.030, subds. (b)-(c).)  Instead, Plaintiffs simply stated in the notice:  “in the alternative, impose issue and evidentiary  sanctions pursuant to Code of Civil Procedure§§ 2023.030 (b) and (c) against CHISVIN.”  (See Plaintiffs’ Notice of Motion, 2:6-7.)   Moreover, in the moving papers, Plaintiffs also do not delineate with specificity the issue and evidentiary sanctions they request to impose on Defendant. 

Accordingly, based upon the notice defects, the Court denies Plaintiffs’ request for issue and evidentiary sanctions, notwithstanding Defendant’s misuse of the discovery process in disobeying the Court’s July 26, 2023 Order. 

                          IV.            Monetary Sanctions

“If a party . . . fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of . . . a monetary sanction under Chapter 7 (commencing with Section 2023.010).”  (Code Civ. Proc., § 2030.290, subd. (c).)  To wit, Code of Civil Procedure section 2023.030 provides in pertinent part:  “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct . . . unless [the court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2023.030, subd. (a).) 

Plaintiffs request monetary sanctions in connection with the motion.  The Court finds that Defendant has failed to obey the Court’s order of July 26, 2023.  As such, Defendant has engaged in the misuse of the discovery process, warranting the imposition of monetary sanctions.  (See Code Civ. Proc., § 2023.010, subd. (g) [“Disobeying a court order to provide discovery”].) 

Accordingly, the Court will impose monetary sanctions against Defendant in the amount of $1460.00, which represents four hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $350 per hour, plus the motion filing fee of $60.

CONCLUSION AND ORDER

Having found that Defendant’s failure to comply with the Court’s July 26, 2023 Order constitutes an abuse of the discovery process, the Court grants in part Plaintiffs’ motion for  monetary sanctions.  Thus, the Court orders Defendant to pay monetary sanctions in the amount of $1460.00, to Plaintiffs by and through counsel for Plaintiffs, within 20 days of notice of the Court’s order.

Further, for the reasons stated above, the Court denies Plaintiffs’ request for terminating, issue and evidentiary sanctions at this time.

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

DATED:  October 6, 2023                            ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court