Judge: Michael J. Strickroth, Case: 2021-01188547, Date: 2022-11-07 Tentative Ruling

Motion for Terminating Sanctions

Defendant Richard Cushman’s motion for terminating sanctions is GRANTED.

The motion, filed on 04/20/2022, seeks sanctions based on the failure of Plaintiffs Thomas Brown and Vanessa Brown to participate in discovery, including Plaintiffs’ failure to comply with the Court’s 11/8/21 and 11/15/21 orders compelling Plaintiffs to respond to Defendant’s written discovery.

Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991–992 (Doppes), describes sanctions that may be imposed for misuse of the discovery process:

“California discovery law authorizes a range of penalties for conduct amounting to “misuse of the discovery process.” (Code Civ. Proc., § 2023.030; Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12, 74 Cal.Rptr.2d 248, 954 P.2d 511.) As relevant here, misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” (Code Civ. Proc., § 2023.010, subd. (d)); “[m]aking, without substantial justification, an unmeritorious objection to discovery” (id., § 2023.010, subd. (e)); “[m]aking an evasive response to discovery” (id., § 2023.010, subd. (f)); and “[d]isobeying a court order to provide discovery” (id., § 2023.010, subd. (g)).

Code of Civil Procedure section 2025.450, subdivision (d) authorizes a trial court to impose an issue, evidence, or terminating sanction under Code of Civil Procedure section 2023.030 if a party or party-affiliated deponent “fails to obey an order compelling attendance, testimony, and production.” Section 2023.030 authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against “anyone engaging in conduct that is a misuse of the discovery process.”

As to issue sanctions, subdivision (b) of Code of Civil Procedure section 2023.030 provides: “The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.”

As to evidence sanctions, subdivision (c) of Code of Civil Procedure section 2023.030 provides: “The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”

As to terminating sanctions, Code of Civil Procedure section 2023.030, subdivision (d) provides: “The court may impose a terminating sanction by one of the following orders: [¶] (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. [¶] (2) An order staying further proceedings by that party until an order for discovery is obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party. [¶] (4) An order rendering a judgment by default against that party.””

Doppes, Id., at 992 (footnote 5 omitted), describes the “incremental approach” to discovery sanctions that should be followed by trial courts:

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. “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.’ ” (Laguna Auto Body v. Farmers Ins. Exchange, supra, 231 Cal.App.3d at p. 487, 282 Cal.Rptr. 530.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280, 26 Cal.Rptr.3d 831)”

In Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1095 (Liberty Mutual), “Liberty propounded simple, straightforward interrogatories, asking for witnesses, documents and evidence to support LCL's affirmative defenses and cross-claims. Each time, LCL gave vacuous, meaningless responses. Frustrated with LCL's continued stonewalling, the trial court granted Liberty's motion for terminating sanctions, striking both the answer and the cross-complaint.”

In Liberty Mutual, Id., at 1105-1106, the appellate court concluded that terminating sanctions were not an abuse of discretion for repeated failure to comply with discovery requests:

“The trial court was not being punitive—it was exercising its broad authority to levy the ultimate sanction when prior efforts yielded no results. The question before us “ ‘is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose.’ ” [Citations] Here, LCL persisted in its pattern of failure or refusal to give meaningful responses to discovery. The trial court was not required to allow LCL to continue its stalling tactics indefinitely. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280, 26 Cal.Rptr.3d 831 (Mileikowsky).) No abuse of discretion is shown.”

In Doppes, supra, at 993-994, the appellate court held the trial court erred by failing to impose terminating sanctions after the defendant violated multiple discovery orders:

“At that point, once it was learned during trial that Bentley still had failed miserably to comply with discovery orders and directives, we hold the trial court had to impose terminating sanctions. Each degree of sanctions had failed. The trial court and discovery referee had been remarkably moderate in dealing with Bentley, ultimately imposing only a form of issue sanction after repeated violations of discovery orders that would have justified terminating sanctions. Yet, during the middle of trial, it was learned that Bentley still had not complied with discovery orders and directives, had been irresponsible at best in preventing destruction of e-mails, had not fully permitted data mining of e-mails as previously ordered, and had failed to produce documents it should have produced months earlier. Bentley's discovery abuses were “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.” (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279–280, 26 Cal.Rptr.3d 831.) Terminating sanctions against Bentley were imperative.”

Here, the Court has adopted an incremental approach to sanctions for Plaintiffs’ failure to comply with the four November 2021 discovery orders. However, this approach has failed to produce compliance with the Court’s orders.

On 11/08/2021, the Court ordered Plaintiff Thomas Brown to provide responses to Defendant’s form interrogatories. On 11/15/2021, the Court ordered Plaintiff Thomas Brown to respond to Defendant’s special interrogatories and requests for production. On 11/15/2021, the Court also ordered Plaintiff Vanessa Brown to respond to Defendant’s form interrogatories and request for production of documents. The Court granted Defendant’s request for monetary sanctions in the amount of $510 as to each motion. 

Defendant filed the present motion for terminating sanctions on 04/04/2022, and the motion was initially set for hearing on 08/08/2022. The motion sought sanctions including dismissal of Plaintiffs’ complaint, entry of default as to Defendant’s cross-complaint against Plaintiffs, monetary sanctions, and evidentiary and contempt sanctions. (Motion, p. 2.)

On 08/08/2022, the Court continued the hearing on the motion for sanctions to 09/12/2022 and ordered Plaintiffs to submit a supplemental brief describing their compliance with the November 2021 discovery orders no later than 08/15/2022. Plaintiffs did not submit the required supplemental brief. Defendant submitted a supplemental brief on 08/22/2022 stating Plaintiffs still hadn’t responded to discovery.

Plaintiffs filed an ex parte application for order of dismissal pursuant to settlement agreement on 08/30/2022, which the Court denied on 08/31/2022. Defendant contends the settlement agreement is invalid because it was the result of undue influence or fraud. As of 11/02/2022, Plaintiffs have not filed a further motion regarding the purported settlement agreement.

On the continued hearing date of 09/12/2022, the Court granted Defendant’s motion for sanctions as to monetary sanctions only, in the total amount of $5,208. The Court again continued the motion and ordered Plaintiffs to file a supplemental brief by 10/03/22 describing their compliance with the discovery orders. The 09/12/2022 minute order stated in part, “If Plaintiffs do not demonstrate full compliance with the Court’s discovery orders, the Court will consider imposition of additional sanctions including evidentiary, issue, and/or terminating sanctions at the hearing on 10/17/2022. The Court will not accept Plaintiffs’ contention that the case has settled as an excuse for further failure to comply with the discovery orders.” The Court later modified the order to set the continued hearing for 11/07/2022.

As of 11/02/2022, Plaintiffs have not filed a supplemental brief pursuant to the Court’s 08/08/2022 order and the Court’s 09/12/2022 order. Defendant’s most recent supplemental brief, filed on 10/07/2022, states Defendant still hasn’t received discovery responses from Plaintiffs as required under the November 2021 orders.

Under Doppes and Liberty Mutual, terminating sanctions are appropriate. Approximately one year after the Court issued the November 2021 discovery orders, Plaintiffs still have not complied with the orders. Plaintiffs have been on notice since April 2022 that Defendant seeks sanctions including terminating sanctions for their failure to comply with discovery. The Court has imposed monetary sanctions and given Plaintiffs several opportunities to comply with the orders to avoid terminating sanctions. The Court warned Plaintiffs that it was considering imposition of terminating sanctions. Plaintiffs’ failure to comply with the November 2021 orders has effectively prevented Defendant from conducting discovery to defend against Plaintiffs’ complaint and prosecute his cross-complaint.

Dismissal with prejudice is an appropriate terminating sanction for failure to comply with discovery orders. Hartbrodt v. Burke (1996) 42 Cal.App.4th 168. Therefore, the Court will enter an order of dismissal with prejudice as to Plaintiffs’ complaint in this matter, filed on 03/10/2021.

Defendant’s request for terminating sanctions as to his cross-complaint against Plaintiffs filed on 05/10/2021 appears to be moot. Plaintiffs have not filed an answer to the cross-complaint. Defendant filed a request for entry of default on 06/30/2021, which was entered by the clerk on that date. Defendant must follow the required procedures in order to obtain a default judgment under Code of Civil Procedure section 585, et seq.

Defendant to give notice.

Order to Show Cause re:  Failure to Appear

Case Management Conference

The parties are required to appear in person or remotely for the Case Management Conference and Order to Show Cause re: Failure to Appear.