Judge Olivia Rosales, Case 19NWCV00396 2022-09-29 Tentative Ruling

Judge: Olivia Rosales, Case: 19NWCV00396, Date: 2022-09-29 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 19NWCV00396 Hearing Date: September 29, 2022 Dept: SEC

CREDITORS ADJUSTMENT BUREAU, INC. v. EMPIRE CONTAINER FREIGHT STATION

CASE NO.: 19NWCV00396

HEARING: 09/29/22

TENTATIVE ORDER

Plaintiff’s motion for terminating sanctions is DENIED. The request for monetary sanctions is GRANTED.

Moving Party to give Notice.

Plaintiff seeks terminating and monetary sanctions on the basis that Defendant is refusing to participate in the discovery process. Specifically, Defendant has failed to comply with this Court’s May 31, 2022 Discovery Order.

This matter was originally set to be heard on Thursday, September 1, 2022. Defendant did not initially oppose the subject motion. Rather, at the hearing, Counsel for Defendant appeared and indicated that, on August 31, 2022 (the day before the hearing), Defendant produced the responses that were the subject of this Court’s May 31, 2022 Order and paid the relevant monetary sanctions.

CCP §2023.010 includes: “(d) Failing to respond or to submit to an authorized method of discovery.” CCP §2023.030 provides, in part: “To the extent authorized by this chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, may impose the [sanctions] against anyone engaging in conduct that is a misuse of the discovery process, including monetary and issue and terminating sanctions.” Failing to respond to an authorized method of discovery and disobeying a court order to provide discovery are both misuses of the discovery process.” (CCP §§2023.010 (d) and (g).) Sanctions which may be imposed for a misuse of the discovery process include “terminating sanctions.”

It is a commonly stated axiom that 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.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) However, a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with discovery obligations. The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit. (Id. at 794-795.)

The Court does not find that terminating sanctions are warranted here because Plaintiff has not abandoned their duties to respond to discovery or comply with Court Orders. It is undisputed that the terms of the May 31, 2022 Order were ultimately complied with—albeit in an untimely manner.

Issue and/or evidentiary sanctions are not requested.

The Court’s denial of the issuance of terminating sanctions at this time is without prejudice. If necessary, these sanctions may be sought again before the trial court.

Given the fact that Plaintiff’s untimely responses were served only after the subject Motion was filed (and one day before it was initially set for hearing), the Court finds that further monetary sanctions are warranted. Further monetary sanctions are GRANTED in the reduced amount of $2,090.62 ($500/hr. x 4) + ($78.35 +$12.27 costs) payable by Defendant EMPIRE CONTAINER FREIGHT STATION, INC. and its counsel of record, Mainak D’Attaray, to Plaintiff and its counsel of record within 30 days of the Court’s issuance of this Order.

The Court declines to rule on Plaintiff’s evidentiary objections to the Defendant’s Evidence. There is no authority holding that the Court must rule on an evidentiary objection made in connection with a motion other than a motion for summary judgment or an anti-SLAPP motion.