Judge Michael P. Linfield, Case 21STCV24615 2023-01-20 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV24615, Date: 2023-01-20 Tentative Ruling

Case Number: 21STCV24615 Hearing Date: January 20, 2023 Dept: 34

SUBJECT: Motion for Terminating Sanctions and Monetary Sanctions

Moving Party: Plaintiff Vladamir Diaz Velasquez

Resp. Party: Defendant W & P Pharmacy Inc.

Plaintiff’s Motion for Terminating and Monetary Sanctions is GRANTED in part. Monetary sanctions are awarded for Plaintiff and against Defendant and Defense Counsel in the amount of $11,240.25. Terminating sanctions are denied.

BACKGROUND:

On July 2, 2021, Plaintiff Vladamir Diaz Velasquez filed his Complaint against Defendant W & P Pharmacy Inc. on causes of action regarding Plaintiff’s former employment with Defendant.

On September 7, 2021, Defendant filed its Answer.

On November 2, 2022, pursuant to the Parties’ Stipulation, the Court: (1) continued Trial and pre-trial deadlines and dates; (2) ordered Defendant within 10 days to respond to discovery propounded from Plaintiff on December 13, 2021; and (3) ordered mediation to be set with Judicate West, facilitated by Mediator Michelle Reinglass, to be scheduled at her next available date or as soon thereafter depending on her availability.

On December 19, 2022, Plaintiff filed his Motion for Terminating and Monetary Sanctions against Defendant.

On January 6, 2023, Defendant filed its Opposition.

On January 13, 2023, Plaintiff filed his Reply. Plaintiff concurrently filed: (1) Declaration of Theresa Douglas; and (2) Supplemental Declaration of Dana Douglas.

ANALYSIS:

I. Legal Standard

Code of Civil Procedure section 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795–96.)

A terminating sanction is a "drastic measure which should be employed with caution." (Id. at p. 793.) "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 Ca1.App.4th 262, 279-280.)

While the court has discretion to impose terminating sanctions, these 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." (Deyo, supra, 84 Cal.App.3d at p. 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Id.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 9711.)

"A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; but see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 ["willfulness is no longer a requirement for the imposition of discovery sanctions."].)

II. Discussion

Plaintiff moves the Court to impose the terminating sanctions of striking Defendant’s answer and entering default on Defendant for Defendant’s allegedly willful failure to comply with the discovery statutes and the Court’s order regarding discovery responses. (Motion, p. 11:4–8.) Plaintiff also moves the Court to award monetary sanctions jointly and severally against Defendant and Defense Counsel in the amount of $11,240.25. (Id. at 11:9–11.) Plaintiff outlines extensively how Defendant failed to respond to discovery for more than a year, including by the deadline ordered by the Court on November 2, 2022. (Id. at pp. 3–6.)

Defendant opposes the terminating sanctions and requests that monetary sanctions be only granted in the amount of $5,000.00 on Defendant (and not Defense Counsel). (Opposition, p. 8:8–11.) Defendant does not dispute that the discovery responses went unanswered; rather, Defendant lays the fault at its own feet (as opposed to its Counsel’s) and states that discovery has now been served (although it does not state exactly when it was served or attach a copy of the discovery response). (Id. at pp. 6:14–16, 7:16–24.)

In his Reply, Plaintiff ultimately confirms that he has received a discovery response, although, among other things, Plaintiff argues that it is unverified, not code compliant, and insufficiently responsive to the discovery requested. (Reply, pp. 2:1–2, 6:15–16.) Plaintiff still requests that terminating sanctions be included in addition to monetary sanctions, but Plaintiff argues in the alternative that monetary sanctions should be imposed in their full amount on both Defendant and Defense Counsel regardless of whether terminating sanctions are imposed. (Id. at pp. 13:15–16, 14:11–18.)

The Court recognizes the difficulties imposed on Plaintiff to obtain initial discovery responses (including Defendant’s discovery response only being filed by mail to the wrong address on the day Defendant’s opposition was filed). However, the Parties agree that Defendant has now served a response to Plaintiff’s request for discovery. Given that the Court has not previously awarded sanctions against Defendant in this matter, it is not appropriate at this time for the Court to impose the ultimate sanctions of striking Defendant’s answer and entering default on it. The lesser sanction of monetary sanctions is appropriate here for producing compliance with the Court’s orders.

Nonetheless, the Court finds that Defendant’s delay of over one year in responding to Plaintiff’s discovery request — particularly after the Court had already ordered the discovery by a date certain — is not acceptable, and the Court considers it to be willful conduct. The argument that Defense Counsel could not coordinate with its client for a year because of COVID-19 is not believable.

The Court finds that the monetary sanctions requested ($11,240.25) to be reasonable based on Plaintiff’s Counsel’s hourly rate ($525.00 per hour), number of hours spent (21.25 hours), and costs ($84.00). (Motion, Decl. Douglas, ¶¶ 42–46.)

The Court GRANTS in part Plaintiff’s Motion for Terminating and Monetary Sanctions. Monetary sanctions are awarded for Plaintiff and against Defendant and Defense Counsel in the amount of $11,240.25. Terminating sanctions are denied.

III. Conclusion