Judge Randolph M. Hammock, Case Number: 19STCV23833, Date: 2023-08-21 Tentative Ruling

Plaintiff Stacy Engman brings this action against Defendant BNY Mellon, N.A. (“BNY”), as Administrator CTA (“Administrator”) for the Estate of Matthew T. Mellon, II (the “Estate”). Plaintiff alleges she had a romantic relationship with the deceased Matthew T. Mellon, II, an heir of the Mellon family. Plaintiff alleges Mellon promised an investment in her fashion design business during his life. Following Mellon’s death, Plaintiff filed a creditor’s claim in the probate proceeding to recover said investment. However, BNY rejected the claim as untimely under the Probate Code. The operative TAC now asserts a single cause of action for Civil Action On Probate Claim against BNY as Administrator.

Defendant now moves for terminating sanctions against Plaintiff for misuse of the discovery process, or in the alternative, issue, evidentiary, and/or monetary sanctions. The motion is unopposed.

Defendant’s Motion for Terminating Sanctions is GRANTED. Plaintiff’s Third Amended Complaint is ordered stricken. The request for monetary sanctions is DENIED.

The Court has the authority to impose sanctions against a party that engages in the misuse of the discovery process. (CCP § 2023.030.) Misuse of the discovery process includes disobeying a court order to provide discovery. (CCP §§ 2023.010(g).) A party engaging in this conduct may be subject to sanctions including monetary, issue, and evidence sanctions. (CCP § 2023.030(a)-(c).)

In addition, if a party fails to obey an order compelling responses to document requests, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . . In lieu of or in addition to that sanction, the court may impose a monetary sanction . . . .” (CCP § 2031.300(c).) The Court must “tailor the sanction to the harm caused by the withheld discovery.” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-1619.)

“[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. ‘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.’” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)

In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Defendant moves for terminating sanctions against Plaintiff for misuse of the discovery process, or in the alternative, issue, evidentiary, and/or monetary sanctions. No opposition was filed..

First, Defendant argues terminating sanctions are necessary because “Plaintiff has repeatedly failed to comply with written discovery, forcing Administrator to bring numerous motions to compel her compliance or for other authorized relief.” (Mtn. 12: 5-9.)

On May 24, 2023, Administrator filed motions to compel responses of Plaintiff to the FROGs Set 2, and to compel further responses to the RFAs Set 2, RFPs Set 2, and SROGs Set 2. On June 23, 2023, the Court granted the Motions in part, ordering Plaintiff to serve code-compliant responses, without objection, to all subject requests in the FROGs Set 2, RFPs Set 2, and SROGs Set 2 within 30 days. (See 06/23/2023 Minute Order.) As to the RFAs Set 2, the Court ordered Plaintiff to provide code-compliant responses to the requests to which she did respond, but denied the motion as to requests to which no response was provided. (Id.) This Court also ordered that Plaintiff pay Defendant $5,000 in sanctions within 60 days. (Id.)

In Defendant’s August 14, 2023, “Supplement” to the motion for sanctions, Defendant represents that Plaintiff failed to timely provide any responses to Defendant’s second set of discovery as compelled, in violation of the Court’s order. (Supp. Moritz Decl. ¶ 6.)

Thereafter, on June 30, 2023, Defendant filed a motion for an Order deeming these remaining RFAs as admitted. On July 3, 2023, Defendant also filed motions to compel responses to RFPs Set 3, and to compel responses to Defendant’s inspection demands, Set One. On July 27, 2023, this court ordered Plaintiff to serve code-compliant responses, without objection, to all requests in Administrator’s RFPs Set 3, and Inspection Demands, within 10-days. The court again ordered monetary sanctions, in the amount of $2,250.00, to be paid within 60 days. (Id.)

Defendant also represents that after finally appearing for her court-ordered deposition, “Plaintiff’s testimony was largely evasive and non-responsive, including deferral of various issues to counsel she had not yet retained.” (Id.) Defendant contends that Plaintiff has largely failed to produced evidence in discovery to support her claims or damages in her Third Amended Complaint. Thus, Defendant suggests that Plaintiff’s “repeated and continuing misuses of the discovery process” warrant terminating sanctions. (Mtn. 12: 26.)

Plaintiff has been unrepresented by counsel since March 3, 2023, when this court granted her former attorney’s motion to withdraw. Since this time, Plaintiff’s has consistently failed to respond to discovery, and has failed to obey this court’s multiple orders compelling same. Despite the imposition of monetary sanctions, these discovery abuses continue.

Based on Plaintiff’s repeated failure to respond to discovery in violation of court orders, failure to appear at recent hearings, and failure to oppose this motion, it is unclear if Plaintiff is still pursuing this action. If nothing else, this evidences Plaintiff’s willful indifference to this court’s orders and to Defendant’s right to defend itself. [FN 1]

Considering the totality of the circumstances here—including that lesser monetary sanctions have been ineffective—terminating sanctions are warranted.

Accordingly, Defendant’s Motion for Terminating Sanctions is GRANTED. Plaintiff’s Third Amended Complaint is ordered stricken.

Code of Civil Procedure Section 2023.030(a) provides that “[t]he 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.” 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. (Id.)

Although an additional monetary sanction may be allowed in this situation, this Court will exercise its discretion, in the interest of justice, to do so, since the moving party is obtaining the ultimate “doomsday” sanction of dismissal of this case.

Judge of the Superior Court

FN 1 - It should be noted that whether the Plaintiff failed to pay the previous monetary sanctions orders is of no consequence. This Court did NOT consider that fact at all in determining the instant motion. If a party fails to comply with a monetary sanctions order, that is not a sufficient basis for additional sanctions. That award can merely be collected as a judgment, as allowed by law.