I. BACKGROUND  

Plaintiff Yvette Ortiz (“Plaintiff”) filed this action against defendant Westfield, LLC and Alicia Williams for injuries Plaintiff allegedly sustained when she slipped and fell on water near the door of the restroom on June 9, 2019. On July 5, 2022, Plaintiff filed an amendment to complaint naming Nationwide Janitorial Services, Inc. as Doe 1.  

On November 29, 2023, the Court granted defendants Culver City Mall, LLC, erroneously sued as Westfield, LLC, and Nationwide Janitorial Services, Inc. (“Defendants”) motion to compel Plaintiff to provide supplemental responses, and the Court ordered Plaintiff to produce her tax returns for the years encompassing 2017 to 2022. (Min. Order, Nov. 29, 2023.)  

Defendants now move for terminating sanctions, or in the alternative issue sanctions and evidentiary sanctions, against Plaintiff for failing to produce her 2017-2022 tax returns. In the alternative, Defendants request issue and/or evidentiary sanctions, in addition to imposing monetary sanctions. 

Plaintiff opposes the motion and seeks monetary sanctions. Defendants filed a reply. 

Defendants submit that Plaintiff has failed to turn over her tax returns for the years 2017-2022 pursuant to the Court’s November 29, 2023 order granting Defendants’ motion to compel further. Defendants contend that Plaintiff withdrawing her claim for economic damages stemming from loss of income has no legal effect, and that Plaintiff’s continual refusal to produce the documents is a discovery abuse warranting drastic sanctions.  

Plaintiff argues the motion is moot and that sanctions are not warranted because she has formally withdrawn her claim for special damages for past and future loss of earnings, and loss of earning capacity. In sum, because Plaintiff has withdrawn claims related to the relevance of the tax returns, Plaintiff argues the tax return privilege is in effect.  

Defendants assert Plaintiff has persistently refused to produce her tax returns, and that the withdrawal of her loss of earning claims is an attempt to amend her complaint without leave. Defendants argue that the Court already found the privilege waived when it granted their motion to compel further, and that this privilege cannot be “un-waived.” 

II. MOTION FOR TERMINATING SANCTIONS 

Code of Civil Procedure § 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, 795-796.)   

However, a terminating sanction is a "drastic measure which should be employed with caution."  (Deyo, 84 Cal.App.3d at 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 Cal.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, 84 Cal.App.3d at 793.)   

Contrary to Plaintiff’s assertions, Defendants’ motion is not moot. However, although Plaintiff has notably wasted time and judicial resources over her refusal to produce her tax returns, the Court finds terminating sanctions to be excessive, because it would place Defendants in a better position than necessitated based on the type of discovery violation. 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, 971].) Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal. App. 4th 323, 331.) 

Accordingly, the request for terminating sanctions is DENIED. The Court finds lesser sanctions to be more appropriate here, and thus turns to the alternative request for issue and evidentiary sanctions. 

III. MOTION FOR ISSUE/EVIDENTIARY SANCTIONS 

CCP § 2023.030, subd. (b) and (c), provide in relevant part: 

“(b) 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. 

(c) 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.” 

“[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.)   

Defendants request sanctions prohibiting Plaintiff from introducing any evidence regarding loss of income, claim for general damages, her retirement, her current and former employment status, her financial status, or the reason for and circumstances surrounding her relocation outside of California. However, Defendants’ requests are overbroad and encompass more than what the tax returns would encompass in terms of its relevance to Plaintiff’s damages. Discovery sanctions should be tailored to "'fit the crime’...."  (Reedy v. Bussell (2007) 148 Cal. App.4th 1272, 1293) Plaintiff did not produce her 2017-2022 tax returns in compliance with the Court’s order. The Court agrees that the tax returns are certainly relevant to any loss of income claim and former employment status as it pertains to earnings. However, the tax returns are not inextricably woven into issues of Plaintiff’s retirement, current financial status, current employment status, and relocation outside of California.  

In terms of Defendants’ contention regarding general damages and the tax returns, indeed loss of earning capacity is part of general damages. However, the Court notes that Defendants omit a relevant part of Connolly v. Pre-Mixed Concrete Co. (1957) 49 Cal.2d 483 in their citation of the law. Connolly provides that, “Loss of earning power is an element of general damages which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damages in this respect are awarded for the loss of ability thereafter to earn money.” (Id. at 489, emphasis added). Nonetheless, because Plaintiff’s past earnings may be helpful in assessing what Plaintiff could have earned, despite loss of earnings and loss of earning capacity being two separate and distinct claims, the Court finds it appropriate to preclude Plaintiff from introducing any evidence of loss of earning capacity here. This would also give effect to Plaintiff’s argument that she has withdrawn her earning capacity claim. However, it would be excessive to preclude Plaintiff from introducing general damages entirely since loss of earning capacity is but one aspect of general damages.  

Accordingly, Defendants’ alternative request for issue and evidentiary sanctions is GRANTED IN PART: Plaintiff is hereby precluded from claiming and introducing evidence related to loss of earnings (present and future), loss of future earning capacity, and income related to her former employment encompassing the years 2017-2022. The remaining requests are denied.  

IV. MONETARY SANCTIONS 

A 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.” (CCP §2023.030(a).)  

Plaintiff’s request for monetary sanctions is denied.  

Defendants’ request sanctions against Plaintiff and Plaintiff’s counsel in the amount of $3,705. The Court will grant Defendants’ request for monetary sanctions, but reduced. Defendants are awarded 12 hours of attorney time at the requested rate of $250 per hour, for a total of $3,000 in attorney’s fees. Further, Defendants are awarded one motion filing fee of $60, as costs.  

Sanctions are imposed against Plaintiff and Plaintiff’s attorney of record, jointly and severally.  Plaintiff and/or Plaintiff’s counsel are ordered to pay sanctions to Defendants, by and through counsel of record, in the total amount of $3,060, within twenty (20) days. 

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 14th day of March 2024