Judge: Michael E. Whitaker, Case: 22STCV10526, Date: 2023-03-10 Tentative Ruling

Case Number: 22STCV10526    Hearing Date: March 10, 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.  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

            Defendant Maloney Meat Co. (Defendant) moves to dismiss the complaint of Plaintiff Rosa Medina (Plaintiff) as a terminating sanction.  Plaintiff opposes the motion.  Defendant replies.

            Foremost, the Court notes that Defendant is requesting further monetary sanctions in connection with the instant motion.  However, Defendant failed to include its request for monetary sanctions in the notice of motion as is required per Code of Civil Procedure section 2023.040, and thus has not provided proper notice of its request.  As such, the Court shall deny Defendant’s request for monetary sanctions.

            Further, Defendant contends that Plaintiff’s opposition is untimely.  Per Code of Civil Procedure section 1005, all papers opposing a motion shall be filed with the Court and a copy served on each party at least nine court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).)  Based on the hearing date of March 10, 2023, Plaintiff was thus required to file and serve the opposition by no later than February 27, 2023.  Plaintiff’s proof of service filed in connection with the opposition states Plaintiff served the opposition on February 27, 2023, electronically.  Plaintiff filed her opposition with the Court on February 28, 2023.  Notwithstanding, Defendant has filed a reply to the opposition with full briefing on the merits.  The Court therefore concludes that Defendant will not be prejudiced by the Court’s consideration of Plaintiff’s opposition on its merits and exercises its discretion to do so.

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 October 26, 2022, the Court ordered Plaintiff to serve verified responses, without objections to Form Interrogatory 17.1, Set One, and further ordered Plaintiff and Plaintiff’s counsel of record, Kenneth C. Yeager, Law Offices of Drociak & Yeager, jointly and severally to pay monetary sanctions in the amount of $1,293 to Defendant, within 30 days of notice of the Court’s orders.  (See October 26, 2022 Minute Order.)  Defendant gave Plaintiff notice of the order on October 31, 2022, electronically.  Plaintiff thus had until December 2, 2022, to serve the verified responses and pay the monetary sanctions.   When the instant motion was filed, Plaintiff had not yet served the verified responses or paid the monetary sanctions.

In opposition, Plaintiff contends the instant motion is moot as Plaintiff is now in compliance with the Court’s October 26, 2022 order.  Plaintiff states Plaintiff’s verified responses to Form Interrogatory 17.1 were served on December 27, 2022, and supplemental responses to Form Interrogatory 17.1 were served on February 24, 2023.

In reply, Defendant confirms that Plaintiff served the verified responses in accordance with the October 26, 2022 order on February 24, 2023.  However, the monetary sanctions in the amount of $1,293 remain outstanding. 

Plaintiff has thus partially disobeyed this Court’s orders of October 26, 2022.  The Court finds, however, that a terminating sanction in this instance would be in excess of what is required to protect the party entitled to but denied discovery.

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.[1] 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].)

CONCLUSION AND ORDER

Therefore, the Court denies Defendant’s motion for terminating sanction of dismissal.  Defendant shall provide notice of this Court’s ruling and file a proof of service of such.