Judge: Monica Bachner, Case: 20STCV28221, Date: 2023-01-25 Tentative Ruling

Case Number: 20STCV28221    Hearing Date: January 25, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants DS Services of America’s and Louis Pulido’s motion for terminating sanctions is denied.

Defendant’s motion in the alternative for discovery sanctions is granted against Plaintiff as to evidence sanctions pertaining to RFP Nos. 1-30 and FROG Nos. 10.1, 11.1, 12.4, 20.9, and 20.10.  Plaintiff is precluded from offering any witnesses at trial pertaining to these discovery responses because Plaintiff has refused to turn over communications with those witnesses in violation of the Court’s order. 

          Defendants DS Services of America (“DS Services”) and Louis Pulido (“Pulido”) (collectively, “Defendants”), move for terminating sanctions dismissing the Plaintiff Juan Galicia’s (“Galicia”) (“Plaintiff) claims with prejudice.  (Notice of Motion, pg. 2; Motion, pgs. 4-5; C.C.P §§2023.030, 2023.040, 2025.450(d).)

Background

On July 27, 2020, Plaintiff filed his complaint for motor vehicle negligence against Defendants.  On September 11, 2021, Defendants propounded on Plaintiff form (“FROG”) and special (“SROG”) interrogatories and requests for production (“RFP”) with a response deadline of October 11, 2021.  Plaintiff served his responses on Defendants without objection on October 29, 2021.  Parties attended informal discovery conferences (“IDC”) and Defendants subsequently filed motions to compel for the FROG, SROG, and RFP.  On June 27, 2022, the Court granted Defendants’ motion in part and ordered Plaintiff to provide further responses to the SROG by July 18, 2022, and ordered Plaintiff and/or his counsel pay $750.00 in sanctions by July 26, 2022.   (6/27/22 Minute Order.)  Plaintiff served discovery responses late on July 27, 2022, and to date, has not paid the sanctions.  (Decl. of Robinson ¶7.)  On September 9, 2022, the Court ordered parties to file a joint statement clarifying their discovery disputes by October 11, 2022.  (9/9/22 Minute Order.)  Defendants filed their statement on October 11, 2022, but Plaintiff did not participate in the preparation of the statement.  (Decl. of Robinson ¶9.)  On October 25, 2022, the Court found that Plaintiff waived all objections, including attorney-client privilege and work product protection, and ordered Plaintiff provide further responses to the FROG and RFP by November 14, 2022, and ordered sanctions against Plaintiff in the amount of $1,200.00 by November 25, 2022.  (10/25/22 Minute Order.)  Plaintiff served his verified responses on Defendants on November 17, 2022.  (Decl. of Ghermezian ¶¶16, 17, Exh. K at pg. 5, Exh. L at pg. 9.)

On November 17, 2022, Defendants filed the instant motion.  Plaintiff filed his opposition on November 28, 2022.  On December 7, 2022, Defendants filed their reply.  On December 9, 2022, Defendants filed supplemental authority and evidence in support of their motion.  This supplemental authority is unauthorized and the Court will not consider it.  On December 14, 2022, this case was reassigned from Department 31 to Department 71.  (12/14/2022 Minute Order.)

 Terminating Sanctions

The Court, “after notice to any affected party…and after opportunity for hearing,” may impose terminating and/or monetary sanctions for misuses of the discovery process.  (C.C.P. §2023.030(a) and (d).)  Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery.  (C.C.P. §§2023.010(d) and (g).) 

“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.)  When deciding whether to impose terminating sanctions, courts generally weigh three factors: (1) whether the party subject to the sanction acted willfully, (2) the detriment to the party seeking discovery, and (3) the number of formal and informal unsuccessful attempts to obtain discovery.  (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  Nonmonetary sanctions require evidence of willful violations of discovery orders or a history of egregious abuses of discovery.  (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486.)  A prerequisite to the imposition of nonmonetary sanctions is willful disobedience of a court order.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403.)  By requiring a violation of a discovery order before imposing nonmonetary sanctions, California courts can be sure that the offending party does not intend to comply with the discovery request.  (Ruvalcaba v. Government Employees Insurance Co. (1990) 222 Cal.App.3d 1579, 1581.)  “[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.)

          Defendants move for terminating sanctions on the grounds Plaintiff has (1) failed to produce further discovery responses to special interrogatories by July 18, 2022, (2) failed to pay the corresponding monetary sanctions, (3) failed to participate in drafting and filing the joint statement by October 11, 2022, and (4) failed to produce the further responses to form interrogatories and requests for production of documents, demonstrating Plaintiff acted willfully.  (Motion, pg. 7; Creed-21, 18 Cal.App.5th pg. 702.)  Defendants argue Plaintiff’s delays has caused detriment to Defendants because they have been forced to litigate the underlying discovery issues for over a year without receiving satisfactory responses, and because of Plaintiff’s actions has not been ready for the trial date set for January 12, 2023.  (Motion, pg. 8.)  Defendants argue the parties engaged in IDCs that did not result in Plaintiff providing complete discovery production, filed multiple motions to compel, and failed to produce revised responses to discovery prior to the court-ordered deadline.  (Motion, pgs. 9-10.) 

Defendants submitted evidence that in response to Defendants’ motion, Plaintiff served their November 17, 2022, discovery responses that Defendants argue are inadequate and not compliant with the Court’s orders, and the verification was sent on November 21, 2022.  (Reply, pgs. 3-4; Supp.-Decl. of Robinson ¶4, Exhs. A, B.)  Defendants submitted evidence that they sent an email to Plaintiff addressing the inadequacies in Plaintiff’s responses.  (Supp.-Decl. of Robinson ¶5, Exh. C.)  Defendants submitted evidence that Plaintiff admitted the inadequacy of his discovery responses and served a supplemental set of responses to Defendant DS Service’s FROG on December 2, 2022, which were also not in compliance with the Court’s orders.  (Reply, pg. 4; Supp.-Decl. of Robinson ¶¶6-7, Exh. D.) 

          Plaintiff argues its failure to comply with the Court’s order has not been willful because its responses to the SROG were served on Defendants on July 27, 2022, nine days late, due to difficulty in reaching Plaintiff to sign verifications for the responses.  (Opposition, pg. 8.)  Plaintiff argues its further responses to the FROG and RFP were served on November 17, 2022, three days late due to difficulty in reaching Plaintiff to sign verifications for the responses.  (Id.)  Plaintiff also argues he and his counsel were not provided adequate notice of Defendants’ motion for terminating sanctions.  (Id. at pgs. 3-4; Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317.)  Unlike in Blumenthal where neither the notice, moving papers, or meet and confer letters mentioned sanctions would be sought against counsel, here, the moving papers sought sanctions against both client and attorney, and counsel was clearly placed on notice of possible sanctions.  (Blumenthal, 103 Cal.App.3d at pg. 320.)

          The Court finds Defendants are not entitled to an order granting terminating sanctions against Plaintiff.  Notwithstanding Plaintiff’s failure to timely provide complete responses to Defendants’ discovery and pay discovery sanctions, there is no evidence that less severe sanctions would not produce compliance with the discovery rules.  (Mileikowsky, 128 Cal.App.4th at pgs. 279-280.)

Based on the foregoing, Defendants’ motion for terminating sanctions is denied.         

Discovery Sanctions

“Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party’s misconduct.”  (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223, citations omitted.) 

Exclusion of a party’s witness for discovery abuses is appropriate only when the omission giving rise to the sanction was willful or in violation of a court order compelling a response.  (See C.C.P. §§2023.030(c), 2030.290(c), 2030.300(e); Pina v. County of Los Angeles (2019) 38 Cal.App.5th 531, 551-552; Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272.)

A contempt order is appropriate in instances where a party or person fails to comply with a discovery order following a motion to compel. (See Lund v. Superior Court (1964) 61 Cal.2d 698.)

In the alternative, Defendants move for non-monetary discovery sanctions.  (Motion, pg. 10.)  Defendants argue that because monetary sanctions have had no impact on Plaintiff’s conduct, the Court should apply, at a minimum, evidentiary and/or contempt sanctions.  (Id.)  Defendants argue that the Court already held all of Plaintiff’s available objections were waived due to Plaintiff’s disregard for discovery deadlines.  (Id. at pg. 11.)  Defendants argue evidentiary sanctions should be issued to preclude Plaintiff from offering any witnesses at trial retained by Plaintiff’s counsel because Plaintiff has refused to turn over communications with those witnesses in violation of the Court’s order.  (Id.)  Alternatively, or in addition to evidentiary sanctions, Defendants argue this court hold Plaintiff and his counsel in contempt.  (Id. at pg. 12.)

Here, Plaintiff has violated the Court’s 10/25/2022 Minute Order directing him to timely serve complete RFP responses to RFP Nos. 1-28 and 29-30, without objections by failing to set forth the name of any person or organization known or believed to have custody, control, or possession of the documents, and failing to produce documents that he has control over, such as his medical records and communications between Plaintiff and his physicians.  (See 10/25/2022 Minute Order; Decl. of Ghermezian ¶17, Exh. L.)  Plaintiff’s responses to FROG Nos. 10.1, 11.1, 12.4, 20.9, and 20.10 are still inadequate in violation of the Court’s 10/25/2022 Minute Order.  (See 10/25/2022 Minute Order; Decl. of Ghermezian ¶16, Exh. K; Supp.-Decl. Robinson Exh. D.)

Based on the foregoing, Defendants’ motion in the alternative for discovery sanctions is granted against Plaintiff as to evidence sanctions pertaining to RFP Nos. 1-30 and FROG Nos. 10.1, 11.1, 12.4, 20.9, and 20.10.  Plaintiff is precluded from offering any witnesses at trial pertaining to these discovery responses because Plaintiff has refused to turn over communications with those witnesses in violation of the Court’s order. 

Dated:  January _____, 2023

Hon. Monica Bachner

Judge of the Superior Court