Judge Ralph C. Hofer, Case 20STCV36297 2023-01-27 Tentative Ruling

Plaintiff Gregory Tate alleges that he was injured when he was hired by defendants Clint Langford and Langford Installations as an independent contractor to finish a construction project involving placing decals on temporary barricades which had been erected around a construction site at premises in the Glendale Galleria mall, pursuant to which defendant Dunkin’ Brands, Inc. was constructing a restaurant within the premises cafeteria. It is alleged that defendant Brookfield Properties Retail Inc. owned, possessed, controlled, maintained and/or managed the Glendale Galleria mall, including the mall cafeteria.

Plaintiff alleges that at the time Langford hired plaintiff to complete the job, the Langford defendants had discovered that the flooring at the premises was unsafe, and that placing a ladder on the flooring was unsafe, as the ladder would slip, but Langford did not indicate that the premises was unsafe in any way, but informed plaintiff that plaintiff could use his own ladder to perform the project. Plaintiff alleges that he placed the ladder up against the Dunkin’s temporary barricade and climbed to the top to finish affixing the decal, and when he applied pressure to the decal, his ladder lost its grip, causing Tate to fall nearly 20 feet on to the tile flooring below, and suffer severe injury.

On August 5, 2022, the court heard an unopposed motion brought by plaintiff to compel defendant Brookfield to comply with its previously served response to plaintiff’s Request for Production of Documents, pursuant to which defendant had agreed to produce responsive documents. The motion was granted, the court ordering:

“Defendant Brookfield Properties Retail, Inc. is ordered to fully comply with the Response of Defendant Brookfield Properties Retail, Inc. to First Request for Production of Documents Propounded by Plaintiff Gregory Tate, to produce all documents in accordance with its responses, and to designate, by bates stamp or other clear means, which documents produced are responsive specifically on the part of responding party defendant Brookfield Properties Retail, Inc.

Requests for Production, Set One, seeking all non-privileged documents, records, correspondence, images, video or audio, incident reports, and witness statements pertaining to the incident, and agreements, non-privileged documents, records, etc. pertaining to the subject project. Also, insurance policies, lease agreement, agreements pertaining to the subject project, and exchanges with the Langford defendants and other named defendants concerning the subject project or incident, and documents regarding reasonable care taken by responding party to keep the flooring at the incident location in a reasonably safe condition, and warnings provided. Responses to Requests for Production agreed to produce responsive documents.

Plaintiff seeks terminating sanctions, or, in the alternative, issue sanctions, against defendant Brookfield, arguing that defendant failed to comply with the court’s previous order that documents be produced as represented in Brookfield’s responses to requests for production of documents, set one.

“If a party filing a response to a demand for inspection, copying…thereafter fails to permit the inspection, copying, testing or sampling…in accordance with that party’s statement of compliance, the demanding party by move for an order compelling compliance.”

Under CCP § 2031.320, subdivision (c), if a party “fails to obey” a court order compelling inspection, copying, testing or sampling, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010).”

Under Section 2023.010, “misuse of the discovery process” includes “(g) Disobeying a court order to provide discovery.” Where there has been such conduct, under CCP section 2023.030 (d), the court may impose a terminating sanction by issuing an order “(1) ...striking out the pleadings... of any party engaging in the misuse of the discovery process.” Under subdivision (b), the court may issue an issue sanction.

Where a court order has been disobeyed, the choice of sanction is within the court’s discretion and will only be set aside for abuse of discretion. Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228. A trial court’s finding that noncompliance was willful will be upheld if supported by substantial evidence. Id.

In general, courts should grant lesser sanctions first before granting terminating sanctions. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771. The Second District in Deyo set out factors which may be relevant in deciding whether to impose sanctions and which sanction to impose:

“In exercising this discretion, a variety of factors may be relevant, including, 1) the time which has elapsed since interrogatories were served, 2) whether the party served was previously given a voluntary extension of time, 3) the number of interrogatories propounded, 4) whether the unanswered questions sought information which was difficult to obtain, 5) whether the answers supplied were evasive and incomplete, 6) the number of questions which remain unanswered, 7) whether the questions which remain unanswered are material to a particular claim or defense, 8) whether the answering party has acted in good faith, and with reasonable diligence, 9) the existence of prior orders compelling discovery and the answering party's response thereto, 10) whether the party was unable to comply with the previous order of the court, 11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and, 12) whether a sanction short of dismissal or default would be appropriate to the dereliction.”

“The penalty 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. Where a motion to comp[el] has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.”

The purpose of the Discovery Act is to facilitate discovery with the view toward conducting trial on the merits: “One of the principal purposes of the Discovery Act...is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits.” Caryl Richards, Inc. v. Superior Court (1961, 2nd Dist.) 188 Cal.App.2d 300, 303 (emphasis in the original). Accordingly, Caryl Richards is often quoted in sanction opinions: “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” Caryl Richards, at 304, citations omitted; see, e.g., Motown Records Corp. v. Superior Court (1984, 2nd Dist.) 155 Cal.App.3d 482, 489.

Here, plaintiff indicates that Brookfield has violated the court’s August 5, 2022 order, as despite previously agreeing prior to the August order to produce documents which distinguished which documents belonged to defendant Brookfield, and which belonged to defendant Good Treats, Brookfield never re-produced the documents prior to the motion to compel compliance, and to the date of the filing of the motion for sanctions, has continued to fail to reproduce the documents, in disobedience of the court’s order. [Forouzan Decl., para. 37]. Plaintiff argues that the documents have not been disambiguated, as required by the court. Plaintiff also indicates that several other sets of discovery and responses remain unresponded to or incomplete, with previous monetary sanctions not previously having been completely paid as ordered by the court. [Forouzan Decl., paras. 36-38].

Defendant has filed opposition indicating that as of the filing of the opposition, defendant has sent to plaintiff the bates stamped documents differentiating their origins into those documents from Brookfield and others from codefendant Good Treats. [Gordon Decl., para. 3, Ex. A]. The email transmitting the secure link purportedly containing the disambiguated documents is attached as Exhibit A, and is dated January 13, 2023, after the filing of the motion on December 12, 2022, but before the hearing on this motion on January 27, 2023. It would appear that if the production is complete and designates which documents are produced by which defendant, the production would satisfy the court’s previous order. This cannot be confirmed from the material submitted but will be discussed at the hearing.

The opposition indicates that another attorney was formerly representing defendant in this matter at the law firm of record, and that the attorney submitting the declaration, Mr. Gordon, took over from the previous attorney, and was unaware that the previous attorney had neglected to follow through regarding the outstanding discovery responses. [Gordon Decl., paras. 4-6]. The current attorney indicates that over the past six months he has worked diligently to see that monetary sanctions were paid and to understand the matter and address the pending discovery issues, including working to ensure compliance with previous court orders. [Gordon Decl., paras. 7, 8]. It is not clear that the sanctions ordered on August 5, 2022 in connection with the underlying motion to compel compliance have been paid.

The opposition argues that some mistakes have been made in the last six months, but they are not extreme enough or deliberate and do not warrant the harsh remedy of terminating sanctions. The opposition argues that the production of the documents separately is the remedy plaintiff has sought and apologizes for the extreme delay. More importantly, the opposition argues, without discussing the issue in the declaration, that this is not a case where the client has been complicit in the discovery abuses, but that the client Brookfield has been cooperative with counsel and is not to blame for any delay or discovery misconduct. [Opposition, p. 6:9-10].

It appears that the appropriate and proportionate method to accomplish the objects of discovery here would be to deny the motion for terminating or issue sanctions, require the parties to meet and confer concerning the adequacy of the latest documents produced, with a view toward ensuring that all information subject to the court’s previous order is provided, and, if necessary, order the service of yet further responses which fully comply with the court’s August 5, 2022 order, along with payment of the previously awarded monetary sanctions, if outstanding, along with further monetary sanctions, discussed below.

Disobeying a court order to provide discovery.” Where there has been a misuse of the discovery process, under CCP section 2023.030 (a) the 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.... If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

in compliance with the court’s previous order within the time permitted but produced only after this motion was filed. It is clear that due to this delay on the part of defendant’s counsel, plaintiff incurred the expense to bring this motion to obtain the court ordered responses. The opposition requests that the court deny the request for monetary sanctions because defendant has now complied with the court’s order. This showing does not meet defendant’s burden to establish that defendant in delaying in complying with a valid court order was substantially justified, or that other circumstances would make the imposition of the sanctions unjust. Monetary sanctions are awarded for the expense of bringing this motion.

clearly took significant time to prepare in retracing the history of the numerous discovery disputes in this matter to argue that the resistance to discovery has extended into an arguable pattern beyond this particular court order and sanctions award. The opposition does not challenge the amount of sanctions sought, or their reasonableness in any respect. Reasonable monetary sanctions are awarded, as follows: 9 hours attorney time at $400.00 per hour as follows: 6.0 hours preparing motion; 2.0 hours drafting reply and 1.0 hour for the hearing for a total of 9.0 hours, which comes to $3,600.00.

The Court notes that defendant in opposition has represented that since the filing of this motion, defendant has produced the subject documents in compliance with the Court’s previous order. The Court orders that the parties meet and confer concerning the sufficiency of that production. The Court orders defendant Brookfield Properties Retail, Inc. to fully comply with this court’s August 5, 2022 order within ten days, including the payment of the monetary sanctions awarded in connection with the underlying order pertaining to the motion to compel compliance with the Response of Defendant Brookfield Properties Retail, Inc. to First Request for Production of Documents Propounded by Plaintiff Gregory Tate. If compliance with the previous August 5, 2022 order requires further response, a further response must be timely served.

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $$3,600.00 (9.0 hours @ $400/hour) [15 hours requested]. plus costs of $65 hearing reservation fee [Amount Requested $6,065.00], which sum is to be awarded in favor of plaintiff Gregory Tate, and against defendant Brookfield Properties Retail, Inc., payable within 30 days. CCP §§ 2031.320 (c) 2023.010(g) and 2023.030(a).

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