Judge: Richard Y. Lee, Case: 30-2020-01152644, Date: 2022-12-01 Tentative Ruling

Defendant, Trident Management, LLC (“Trident”) moves for an order imposing terminating sanctions, alternatively issue sanctions and/or evidence sanctions against Plaintiff, Tess Kielhamer for violating this Court’s Order compelling further responses to Special Interrogatories, Set Two. Trident also requests additional monetary sanctions against Plaintiff and her counsel in the amount of $3,210 for this motion and for failing to obey an order compelling further responses.

Trident contends that Plaintiff and her counsel have directly violated the Court’s June 30, 2022 Order granting Trident’s motion to compel further responses to Special Interrogatories, Set Two (“SPROG 2”) by failing to provide further responses to SPROG 2 which are focused on identifying the various treating physicians and other persons that advised/informed Plaintiff of the relationship between the all exposure to mold and asbestos and her injuries, and that Plaintiff has continuously used bad faith tactics through this matter warranting terminating sanctions, or alternatively issue sanctions and/or evidence sanctions, as well as additional monetary sanctions in the amount of $3,210 against Plaintiff and her counsel.

Plaintiff’s counsel provides that terminating, issue, evidence, and monetary sanctions are not warranted because Plaintiff’s counsel failure to comply with the Court’s order was not due to deliberate or willful acts, but due to extreme and extraordinary circumstances existing as counsel’s office, including personal issues faced by Plaintiff’s counsel, Gary R. Carlin, and frequent personnel changes at the firm, including the departure of several attorneys and paralegals which caused Plaintiff’s counsel to inadvertently fail to respond timely to SPROG 2 and sanctions.

The court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process by an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process, an order staying further proceedings by that party until an order for discovery is obeyed, an order dismissing the action, or any part of that action, of that party, or an order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)

The court may also impose an issue sanction ordering that 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, or an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code Civ. Proc., §§ 2023.030(b)-(c).)

Additionally, the court may impose a monetary sanction ordering that one engaging in conduct that is a misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, included attorney’s fees incurred as a result of that conduct. (Code Civ. Proc. § 2023.030(a).)

A court has broad discretion in selecting the appropriate penalty for a party’s refusal to obey a discovery order, and the trial court’s determination must be upheld absent an abuse of discretion. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (“Lopez”).) “Despite this broad discretion, . . . . the terminating sanction is a drastic penalty and should be used sparingly. [Citation.].” (Ibid.)

The discovery statutes “evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective [citations].” (Lopez, supra, 246 Cal.App.4th at pp. 604-605.)

Here, Plaintiff’s counsel provides that on February 7, 2022, he and his wife discovered that their adult daughter had hacked into their personal bank account, and his general operating account for his law firm and stolen several millions of dollars, as well as discovered that their daughter had used their credit cards to charge hundreds of thousands of dollars for her personal use which nearly forced them into bankruptcy. (Declaration of Gary R. Carlin, ¶ 2.) Attorney Carlin also provides that they have reported this to Long Beach Police Department, and in the past seven (7) months, he has had “extreme difficulty practicing law, including having trouble focusing on [his] working, taking care of business, and dealing with various personnel issues at [his] law firm” resulting in him losing “some seven (7) attorneys and four (4) paralegals, each of whom complained to [him] during their exit interviews that [he has] been reclusive, distant, disinterested in the problems and issues of [his] staff, attorneys, and paralegals, such that most of them have lost interest in working at [his] law firm.” (Id., ¶¶ 3, 5.) Attorney Carlin additional provides that he has brought in two attorneys and paralegal and is now working “six (6) to seven (7) days a week, 10 to 12 hours a day, in an effort tot straighten the operation of [his] practice out.” (Id., ¶ 6.)

Under these circumstances, the failure to obey the Court’s June 30, 2022 Order and to provide further responses to SPROG 2 does not warrant terminating sanctions in the first instance. Nor does it warrant issue, evidence, or additional monetary sanctions.

The Court ORDERS Plaintiff to comply with the Court’s June 30, 2022, within 20 days of the notice of ruling.

Trident to give notice of this Minute Order and of the Court’s June 30, 2022 Minute Order.