Judge Ralph C. Hofer, Case Number: 21STCV11395, Date: 2023-09-29 Tentative Ruling

Plaintiffs Neuro Diagnostic Center, Inc. and Shushanik Devine allege that they were in possession of premises in Glendale and that defendants A & D Fire Sprinklers, Inc. (A & D) and National Community Renaissance of California, while conducting construction work installing a new fire sprinkler system and plumbing at property directly behind the subject premises, were negligent, causing a major water overflow from the property which caused flooding throughout plaintiffs’ entire premises, as a result of which plaintiffs sustained significant property damage and loss of earnings.

The complaint alleges that defendants were responsible for three major water flows and flooding, in December of 2018, February of 2019 and March of 2019. The form complaint alleges a cause of action for general negligence.

The file shows that on March 3, 2023, the court heard two motions brought by the moving party, defendant A & D, to compel further responses to Special Interrogatories (Set One) from each of the plaintiffs. The motions were granted, and plaintiffs were each ordered to serve further responses to Special Interrogatories Nos. 1, 4, 7, and 19, within ten days. The court awarded monetary sanctions in favor of defendant and against each plaintiff in the sum of $2,060.

On November 17, 2023, the court heard two motions brought by defendant A & D to compel additional further supplemental responses from each plaintiff as to Special Interrogatories (Set One) Nos. 1, 4, and 19. The motions were granted, and further responses were ordered to be served within ten days. The court awarded further monetary sanctions in favor of defendant and against each plaintiff in the sum of $2,560. A request for issue, evidence or terminating sanctions was denied. Counsel Kelleher (counsel for defendant A & D) was ordered to give notice. On November 21, 2023, defendant filed and served Notice of Ruling, attaching the court’s November 17, 2023 minute order granting the motions.

Special Interrogatories— Requesting facts in support of cause of action for negligence, facts in support of claim that water intrusion was result of action or inaction by propounding party, identification of documents that support loss of income claim.

Defendant A & D brings this motion seeking sanctions for plaintiffs’ failure to supplementally respond to A & D’s Special Interrogatories Set One, Nos. 1, 4 and 19, and to pay the monetary sanctions which have been awarded pursuant to the court’s November 17, 2023 order. Defendant’s counsel indicates in a declaration that as of the date of the declaration, February 6, 2024, defendant has still not received from plaintiff the monetary sanctions award or additional further supplemental responses to A & D’s subject special interrogatory as ordered by the court on November 17, 2023. As noted above, the motions were granted at that time and further responses ordered to be served within ten days. Notice of Ruling was served on November 21, 2023, by electronic transfer and U.S. mail. The further responses were accordingly due within ten days of November 21, 2023, with an additional two days for service by electronic service, so by December 3, 2023. Further responses had not been served as of February 6, 2024.

Under CCP § 2030.300(e), if a party “fails to obey” a court order compelling further responses to interrogatories, “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.”

“(b) The court may impose an issue sanction ordering the 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.

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 is 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, italics in the original. Accordingly, Caryl Richards is often quoted in sanctions 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.

In this case, plaintiffs have been ordered to provide further responses to interrogatories and have failed to do so. The interrogatories were originally propounded and served on May 13, 2022. The interrogatories seek the facts supporting plaintiffs’ cause of action for negligence and contentions that an act or omission by moving defendant A & D acts or omissions resulted in the water intrusion plaintiffs claim harmed them, as well as the identification of documents supporting plaintiffs’ loss of earnings claim. This information clearly pertains to this case, and to plaintiffs’ own allegations, and the information should not be difficult for plaintiffs to obtain.

Plaintiffs first failed to fully comply with the court’s March 3, 2023 minute order concerning further responses to the subject discovery requests, and now have failed to timely serve any further responses at all in response to the November 17, 2023 order.

However, this motion concerns only one round of discovery, and involves only responses to three of a set of over 19 discovery requests. Ordinarily in such circumstances, the motion would not be granted but plaintiffs ordered one final time to provide the discovery, and to pay further monetary sanctions. However, the moving papers expressly state that defendant does not seek another court order to supplement responses, stating in the Notice in bold print:

“A&D is not asking this Court to Order yet again Plaintiffs to further supplementally respond to A&D’s Subject Interrogatories, but A&D is only asking this Honorable Court to impose the requested sanctions.”

The motion does not clearly explain what issue or evidence sanctions are sought, in effect, what issue the court should order be determined in this matter, or what evidence plaintiffs should be prohibited from introducing due to their failure to obey the court’s orders. A terminating sanction is premature, and the fact that defendant has argued it does not want any further discovery orders suggests that the sanctions are not being sought in order to obtain the discovery to which defendant is entitled, but to punish plaintiffs. The trial date is currently set for July 8, 2024, and there does not appear to be any particular urgency in obtaining the subject discovery. The court recognizes that the failure to comply with discovery may be construed as an admission that the case has no merit: “A persistent refusal to comply with an order for production of evidence is tantamount to an admission that the disobedient party really has no meritorious claim...” Kahn v. Kahn (1977) 68 Cal.App.3d 372, 382.

Here, there has not yet been shown a persistent refusal to comply with the court’s orders, although the court is aware that plaintiffs are now facing discovery motions from defendant’s co-defendant, and plaintiffs appear to be engaging in a pattern of conduct which may ultimately lead to more serious consequences. The court notes from the file that counsel for the corporate defendant has previously indicated in an ex parte application an intent to move to be relieved as attorney of record, but no noticed motion currently appears in the file. Under the current circumstances, the court will deny the requests for issue, evidence, or terminating sanctions as premature, and award additional monetary sanctions in lieu of those remedies.

CCP § 2030.300(e) provides that for failure to obey a court order compelling further responses to interrogatories, “In lieu of or in addition to” an issue, evidence or terminating sanction, “the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

As noted above, CCP § 2023.010 defines misuse of the discovery process to include “(g) 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 this case, plaintiffs have failed to obey a court order and defendant has submitted evidence that defendant has been forced to incur expense due to this conduct.

Sanctions are awarded. The sanctions sought are $2,260.00. This amount is not reasonable and is adjusted as follows: 5.0 hours preparing the motion; 1.0 hour to appear at the hearing remotely at $200.00 per hour for attorney time for a total of $1,200.00.

The Court finds that plaintiffs Neuro Diagnostic Center, Inc. and Shusanik Devine have failed to comply with this Court’s order of March 3, 2024 to pay monetary sanctions, and have failed to comply with this Court’s order of November 17, 2023, requiring plaintiffs to serve further responses to special interrogatories, and to pay monetary sanctions.

In lieu of issue, evidence, or terminating sanctions, the Court will award further monetary sanctions. Further monetary sanctions requested by moving party: 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 $1,200.00 (6.0 hours @ $200/hour) (11 hours requested ), plus filing fees in the sum of $60 [Amount Requested $2,260], which sum is to be awarded in favor of defendant A & D Fire Sprinklers, Inc. and against plaintiffs Neuro Diagnostic Center, Inc. and Shushanik Devine, jointly and severally, payable within 30 days. CCP§§ 2030.300(e), 2023.010(g) and 2023.030(a).

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