Judge Ralph C. Hofer, Case Number: 21STCV36132, Date: 2025-01-03 Tentative Ruling

Plaintiff Sashile Wood alleges that defendant CP IV Glendale, LLC (CP IV) is the owner of an apartment building located on Central Avenue in Glendale (premises), and that defendant Greystar Real Estate Partners, LLC (Greystar) is a real estate management company which operated as the building manager of the premises (collectively, the premises defendants).

Plaintiff alleges that plaintiff entered into a lease agreement with the premises defendants to reside at the premises, a luxury apartment building. Plaintiff alleges that in accordance with the Washer Dryer Addendum to the lease, plaintiff’s unit would come with a clothes washer and dryer supplied by defendants, and that the washer dryer supplied by the premises defendants was manufactured by defendant Electrolux Home Products, Inc. (Electrolux).

The complaint alleges that in October of 2019 plaintiff began to suffer from unexplained illnesses and rashes and abrasions all over her body, and discovered that an environmental hazard had formed in her washer, including mold and other bacteria. Plaintiff sought the care and treatment of medical professionals who diagnosed plaintiff with a number of medical issues caused by the environmental hazard in the washer at the premises supplied and manufactured by defendants.

The complaint alleges causes of action for negligence, negligence per se, strict products liability, breach of implied warranty of habitability, breach of implied covenant of quiet enjoyment, nuisance, NIED, statutory breach of warranty of habitability, and breach of contract.

The file shows that on February 23, 2024 the court heard unopposed motions by moving defendant Electrolux to compel responses to form interrogatories, special interrogatories, and request for production of documents, which were granted, and plaintiff ordered to serve responses and permit inspection and copying within ten days. Plaintiff was also ordered to pay monetary sanctions of $4,015.00 payable within thirty days.

On March 15, 2024, the court heard a motion to deem requests for admissions admitted brought by Electrolux. The unopposed motion was granted, and plaintiff was ordered to pay sanctions in the sum of $1,475.00 within thirty days.

Requests for Admissions— Various, including admit did not clean machine, read any instruction manual, experienced dermatological incidents prior to moving into unit, no health care provider personally viewed alleged environment condition in the washer or stated with certainty that it was cause of bodily injuries, no evidence or conspiracy, did not notify any defendants of alleged environmental hazard or requested that Electrolux remediate.

Under CCP § 2031.300 (c), if a party “fails to obey” a court order compelling a response to a demand for documents, “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.” 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.

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 797 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 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, plaintiff has been ordered to provide responses to three sets of discovery and has failed to do so. The discovery requests basic information concerning plaintiff’s claims against defendant Electrolux in this action, which information should not be difficult for plaintiff to obtain.

The requests for admissions which have been deemed admitted admit that Electrolux did not conspire with the other defendants, and that plaintiff failed to clean the washing machine, read any instruction manual, notify defendants of a problem, or request that Electrolux remediate the problem.

This motion concerns only one round of discovery, and it does not appear from the file that plaintiff has been persistently violating discovery orders as to this defendant. Ordinarily in such circumstances, the motion would not be granted, but plaintiff would be ordered one final time to provide the discovery and to pay further monetary sanctions. The court will consider issuing such an order here.

However, there is no opposition to this motion, and plaintiff also failed to oppose in writing the four previous motions, and has been the subject of motions to compel discovery by other defendants, which have been granted with monetary sanctions awarded. The trial date is currently February 18, 2025, so there is some urgency with respect to obtaining the discovery. Plaintiff has also by plaintiff’s inaction permitted Requests for Admissions to be deemed admitted against plaintiff which minimizes claims and current and future damages. Plaintiff has also failed to file timely written opposition to this motion.

It is not clear what else defendant should be required to do here to get plaintiff’s attention and compel plaintiff’s compliance with discovery obligations in this matter. Plaintiff has also failed to pay the monetary sanctions awarded, so the court may find the imposition of lesser sanctions has been ineffective here.

It is held that where there is a pattern of failing to provide discovery, the court may imply a continuing intent to abuse the discovery process, and permitting a party one more chance to comply is inappropriate. Manzetti v. Superior Court (1993) 21 Cal.App.4th 373, 379. 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.

Although there is hardly a pattern established here, there has been a persistent eighteen month refusal to respond to the discovery or to formal efforts to obtain it. Particularly if there continues to be no opposition or argument made on behalf of plaintiff, the court would be within its discretion to grant the motion, and place the onus on plaintiff to explain why any resulting dismissal should be set aside.

CCP § 2031.300(c) provides that for failure to obey a court order compelling response to a document demand, “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).” A similar provision applies to failure to obey a court order compelling responses to interrogatories. CCP § 2030.290(c).

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, plaintiff has failed to obey a court order and defendant has provided evidence that defendant has been forced to incur expense due to this conduct. Plaintiff has failed to file timely opposition, so has failed to meet the burden to establish substantial justification.

Monetary sanctions are awarded. The sanctions sought are $2,420.00 Defendant seeks one hour at $295 to review opposition and two hours to prepare a reply, when there is no opposition, and any reply should not take long to prepare. The sanctions will be adjusted accordingly as follows: five total attorneys hours at $295 per hour for a total attorney fee sanctions of $1,475.00.

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 $ 1,475.00 ( 5 hours @ $295 per hour) [8 hours requested] plus a filing fee of $60 [Amount Requested $2,420.00], which sum is to be awarded in favor of defendant Electrolux Home Products, Inc. and against plaintiff Sashile Wood, payable within 30 days. CCP §§ 2030.290 (c), 2031.300(c), 2023.010(g) and 2023.030(a).

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.