Judge: Michael E. Whitaker, Case: 21STCV26613, Date: 2023-03-13 Tentative Ruling

Case Number: 21STCV26613    Hearing Date: March 13, 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

MOTION

            Plaintiff Adrien Aaron Garcia (Plaintiff) moves to impose terminating sanctions, or in the alternative, issue and evidentiary sanctions, against Defendant Juan Carlos Olvera (Olvera).  Additionally, Plaintiff seeks monetary sanctions in connection with the motion.  Defendants Juan Carlos Olvera and American Way Management, Inc. (collectively, Defendants) oppose the motion.  Plaintiff replies.

PROCEDURAL HISTORY

·       On August 19, 2022, the Court issued an order granting Plaintiff’s Motion to Compel Verified Responses to Demands for Production, Set One, ordering Olvera to provide verified responses without objections and to pay monetary sanctions in the amount of $750.  (See Minute Order, August 19, 2022.)

·       On September 9, 2022, the Court issued an order granting Plaintiff’s Motion to Compel Verified Responses to Demands for Production, Set Two, ordering Olvera to provide responses without objections and to pay monetary sanctions in the amount of $500.  (See Minute Order, September 9, 2022.)

·       On October 21, 2022, Olvera served all outstanding discovery verifications.  (See Declaration of Misak Chanchikyan, Exhibit 8.)

·       On October 28, 2022, the Court issued an order, granting in part Plaintiff’s motions to compel verified responses to Demands for Production, Sets Three and Four.  The Court found Plaintiff’s motions were moot considering Olvera provided verifications, but ordered Olvera to pay monetary sanctions in the amount of $1,250.  (See Minute Order, October 28, 2022.)

·       On October 31, 2022, the Court issued an order, granting in part Plaintiff’s motions to compel verified responses to Form Interrogatories, Set One, and Special Interrogatories, Set One.  The Court found Plaintiff’s motions were moot considering Olvera provided verifications, but ordered Olvera to pay monetary sanctions in the amount of $1,250.  (See Minute Order, October 31, 2022.)

·        On November 3, 2022, the Court issued an order denying Plaintiff’s motion for terminating sanctions based on Plaintiff’s failure to provide notice of the prior rulings.  (See Minute Order, November 3, 2022.)

·       On November 3, 2022, Plaintiff provides Olvera Notice of the August 19, September 9, October 28, and October 31, 2022 Court rulings, electronically.

·       On November 11, 2022, Plaintiff took Olvera’s deposition.  Olvera testified in relevant part the following:

Q.  Can you see where it says Plaintiff’s Special Interrogatories, Set One to Defendant Juan Carlos Olvera?

A.  Yes.

Q.  And have you seen that document before today?

A.  I barely got it – this document, I barely got it.

. . .

Q.  And do you understand – going back to Exhibit 11, which you signed – that this is the verification that you signed under the penalty of perjury on October 21^st, 2022, verifying that that statement was true and correct?

A.  Well, I told him that it was – it was best to my knowledge.  I didn’t see that they wrote that, but I wasn’t sure 100 percent of that.

. . .

Q.  Mr. Olvera, you understand that as of 20 days ago, you verified under the penalty of perjury that the collision occurred when a white sedan cut you off causing you to veer off the roadway on to the shoulder, hitting Adrien Garcia?

A.  Yeah.  This paper, I – I singed it, but they told me they needed it right away.  But I didn’t read that they had that.

. . .

Q.  Mr. Olvera, are you suggesting that you signed a verification under the penalty of perjury attesting that certain things were true without ever reading those things first?

A.  The problem is they say they need those papers right away, and they give me, like, ten minutes less.

…

Q.  Got it.  So you signed 12 or 13 papers that were verifications in which you failed to read or didn’t have an opportunity, is probably a fair statement – didn’t have an opportunity, is probably a fair statement – didn’t have an opportunity to read the statements that you were signing under the penalty of perjury.  Is that accurate?

A.  Yes.  Because I – I – you know, yes.

(Deposition of Olvera, 49:25–50:4, 85:6-12, 87:6-16, 87:17-22, 89:3-8.)

·       To date, Olvera has outstanding monetary sanctions against him totaling $3,750, based on the August 19, September 9, October 28, and October 31, 2022 Court rulings.

ANALYSIS

            Plaintiff seeks terminating sanctions, or in the alternative, issue and evidentiary sanctions against Olvera based on Olvera’s disavowal of his verified responses to discovery during his deposition when he confirmed that he did not fully review the subject discovery responses before verifying them under penalty of perjury to be true. 

1.     Evidentiary and Issue Sanctions

As to Plaintiff’s request for evidentiary and issue sanctions, the Court finds Plaintiff has failed to give Olvera sufficient notice of what Plaintiff is seeking from the Court.  Under Code of Civil Procedure, section 2023.040, “[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.” 

Here, Plaintiff indicates in his notice of motion that he is, in the alternative, seeking “issue and evidentiary sanctions” against Olvera.  (Plaintiff’s Motion, p. 2.)  Plaintiff’s Separate Statement, further, does not provide any aid in clarifying the type of sanctions Plaintiff is seeking against Olvera.  Plaintiff again generally requests “issue and evidentiary sanctions” and that the Court “resolve liability, causation, and damages, Plaintiff’s favor.”  (Plaintiff’s Separate Statement, pp. 1, 2.)

However, the Court finds Plaintiff’s generalized request for issue and evidentiary sanctions, without specificity as to, for example, what evidence he is seeking to exclude, or what issues he wishes to establish, is not sufficient to put Olvera on notice as to what type of issue and evidentiary sanctions Plaintiff seeks.

Accordingly, the Court denies Plaintiff’s request for evidentiary and issue sanctions as procedurally defective.

2.     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).) 

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.)

            Plaintiff attests that Olvera’s conduct amounts to serious misuse of the discovery process which warrants terminating sanctions.  Plaintiff argues Olvera’s admissions in his deposition, that he did not fully review, or at worst even read, his discovery responses before verifying under penalty of perjury leads to two conclusions: (1) Olvera’s later disavowal of his discovery verifications amounts to a failure to comply with the Court’s orders to verify his discovery responses; and (2) Olvera misrepresented to both the Court and Plaintiff that the verifications previously produced were done so under penalty of perjury.

            Plaintiff cites to Los Defensores, Inc. v. Gomez in support of his contention that the above-described conduct warrants terminating sanctions.  Los Defensores, Inc. v. Gomez states “California discovery law authorizes a range of penalties for conduct amounting to misuse of the discovery process, including terminating sanctions.”  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 [cleaned up]; Code Civ. Proc., § 2023.030, subd. (d).)  Misuses of the discovery process include making an evasive response to discovery and disobeying a court order to provide discovery.  (Code Civ. Proc., § 2023.030, subd. (d)(4).) 

            Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789 lays out a framework for the Court to assess when to impose terminating sanctions: (1) “when the conduct was clear and deliberate”; (2) “when no lesser alternatives would remedy the situation”; (3) “the fault lies with the client and not the attorney”; and (4) when the court issues a directive that the party fails to obey.”  (Id. at p. 799.)

            Here, the Court finds that the first and third factors of the Del Junco framework weigh against imposing terminating sanctions.  Based on the deposition testimony of Olvera, it does not seem that his failure to fully review or read his discovery responses before signing them under penalty of perjury was clear and deliberate, or entirely his fault.  As is reflected in the following excerpts of Olvera’s testimony, Olvera’s failure to review his discovery responses before verifying may not have been intentional, but instead influenced by the instruction or request of his counsel:

Q.  Mr. Olvera, you understand that as of 20 days ago, you verified under the penalty of perjury that the collision occurred when a white sedan cut you off causing you to veer off the roadway on to the shoulder, hitting Adrien Garcia?

A.  Yeah.  This paper, I – I singed it, but they told me they needed it right away.  But I didn’t read that they had that.

. . .

Q.  Mr. Olvera, are you suggesting that you signed a verification under the penalty of perjury attesting that certain things were true without ever reading those things first?

A.  The problem is they say they need those papers right away, and they give me, like, ten minutes less.

…

Q.  Got it.  So you signed 12 or 13 papers that were verifications in which you failed to read or didn’t have an opportunity, is probably a fair statement – didn’t have an opportunity, is probably a fair statement – didn’t have an opportunity to read the statements that you were signing under the penalty of perjury.  Is that accurate?

A.  Yes.  Because I – I – you know, yes.

(Deposition of Olvera, 87:6-16, 87:17-22, 89:3-8.)  Olvera is a lay person and thus cannot be expected to know the proper procedure for verifying discovery responses, nor can he be expected to appreciate the full weight of his actions for failure to fully review said discovery responses before verifications, without specific advisement of his counsel.  Based on the “totality of the circumstances”, considering Olvera’s statements that his Counsel needed his discovery verifications “within ten minutes”, or “right away”, the Court cannot determine that Olvera’s failure to fully review his discovery responses before verification was willful, or entirely his fault.  (See Los Defensores, Inc. v. Gomez, supra, 223 Cal.App.4th at p. 390; see also Del Junco v. Hufnagel, supra, 150 Cal.App.4th at p. 799.)  Accordingly, the Court declines to grant terminating sanctions against Olvera.

3.     Monetary Sanctions

Finally, Plaintiff seeks to impose monetary sanctions against Olvera for his purported discovery misconduct.  Under Code of Civil Procedure, section 2023.030, subdivision (a), “If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 

As Plaintiff highlights in his motion, there is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.  (See Clement v. Alegre (2009) 177 Cal.App.4ht 1277, 1286; see also Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)  However, the Court may decline to award monetary sanctions if it finds that the individual involved in the discovery misconduct acted with substantial justification.  (Code Civ. Proc., § 2023.030, subd. (a).)  Here the Court finds that Olvera failed to review his discovery responses before verifying them because he did not have the opportunity to do so.  As discussed above, Olvera’s Counsel told him that they needed said discovery returned within ten minutes, or right away.  As such it seems that Olvera failed to verify his discovery under penalty of perjury based on the instruction of his counsel to return his discovery responses to them quickly.  Accordingly, the Court further declines to impose monetary sanctions against Olvera, because his discovery misconduct was based on the advise of his Counsel and thus he acted with substantial justification.  

Further, Defendants request monetary sanctions in connection with the instant motion.   “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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it 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).) 

Here, Defendants argue that Plaintiff engaged in the misuse of the discovery process by “unsuccessfully asserting that another has engaged in the misuse of the discovery process.”  The Court disagrees.  The Court finds Plaintiff’s motion to be righteous in identifying actions which may have constituted discovery misconduct, even if the fault of said misconduct may not lie entirely with Olvera.

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s motion for terminating, or in the alternative evidentiary and issue sanctions.  The Court further denies Plaintiff’s request for monetary sanctions.

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