Judge: Richard Y. Lee, Case: 30-2021-01206676, Date: 2022-10-20 Tentative Ruling
Defendant, City of Huntington Beach (“Defendant”) moves for an order for Terminating Sanctions and/or Issue Sanctions and Monetary Sanctions in the amount of $450 against Plaintiff, Aaron Malaszewski (“Plaintiff”).
Defendant contends that Plaintiff failed to obey the Court’s Order dated August 25, 2022, ordering Plaintiff to serve verified responses, without objections, within 20 days of the notice of ruling following the Court’s ruling on the City’s motion to compel answers to the second set of form and special interrogatories, motion to compel production of documents, and motion to deem facts admitted. Defendant contends that Plaintiff has failed to engage in or prosecute this lawsuit and has demonstrated his unwillingness to participate in this lawsuit, warranting the issuance of terminating sanctions by dismissing this action; that if the Court declines to issue terminating sanctions, the Court should impose issue sanctions that certain facts from Defendant’s Special Interrogatories, Set Two be established; and that the Court should issue monetary sanctions in the reduced amount of $450 as Plaintiff is in pro per for the misuse of the discovery process.
Plaintiff has not filed an opposition.
Terminating 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).) Misuses of the discovery process include disobeying a court order to provide discovery. (Code Civ. Proc. § 2023.010(g).)
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.) “A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. [Citations.].” (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.)
“ ‘Discovery sanctions “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.” [Citations.] “ ‘The trial court has a wide discretion in granting discovery and . . . is granted broad discretionary powers to enforce its orders but its powers are not unlimited . . . . [¶] 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. [Citations.]’ “ [Citations.]’ [Citations.] ‘ “The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful [citation].” [Citation.]’ [Citation.]” (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)
Here, Defendant seeks terminating sanctions for Plaintiff’s failure to comply with the Court’s discovery order. Specifically, on August 25, 2022, the Court granted Defendant’s discovery motions to compel responses to Form Interrogatories, Set Two; Special Interrogatories, Set Two; Requests for Production of Documents, Set Two, and to deem admissions admitted. (Declaration of Lauren L Rose, ¶¶ 6, 9; Ex. C.) Prior to the August 25, 2022 hearing, the Court issued a tentative ruling, granting all three of Defendant’s discovery motions, and on August 25, 2022, Plaintiff agreed to submit to the tentative ruling which stated that he must respond to Defendant’s written discovery within 20 days. (Rose Decl., ¶¶ 7, 8; Ex. B.) Defendant served Plaintiff with a Notice of Ruling on August 26, 2022. (Rose Decl., ¶ 10; Ex. D.) However, as of the date of the filing of the instant motion, September 27, 2022, Plaintiff has failed to comply with the August 25, 2022 Court Order and no responses subject to Defendant’s motions to compel have been served on Defendant. (Rose Decl., ¶ 11.)
The Court agrees that the foregoing failure is unfortunate. However, being mindful of the guidance suggesting incremental steps, the Court will afford one additional opportunity. Accordingly, the request for terminating sanctions is DENIED without prejudice.
Issue Sanctions
The court may 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. 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. (Code Civ. Proc. § 2023.030(b).)
“An issue sanction is an order that designated facts are deemed established in favor of the party adversely affected by the misuse of the discovery process, or an order prohibiting the sanctioned party from supporting or opposing designated claims or defenses. [Citation.]” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)
Here, Defendant provides that if the Court is not inclined to dismiss the action, that it should issue an order imposing issue sanctions. Specifically, in its Memorandum of Points and Authorities, Defendant requests that the court impose an issue sanctions that the following facts, which were asked in Defendant’s Special Interrogatories, Set Two, be taken as established for all purposes in this action:
1. Plaintiff incurred no emotional distress in connection with the subject accident that occurred on December 3, 2020. (See Exhibit A for the City’s propounded Special Interrogatories, Set Two, Nos. 38-39.)
2. Plaintiff has no future medical appointments in connection with the subject accident that occurred on December 3, 2020, including any surgeries. (See Exhibit A for the City’s propounded Special Interrogatories, Set Two, Nos. 46-50 & 63-65.)
3. Plaintiff did not incur a traumatic brain injury in connection with the subject accident that occurred on December 3, 2020. (See Exhibit A for the City’s propounded Special Interrogatories, Set Two, Nos. 52-57.)
4. Plaintiff incurred no psychological injuries in connection with the subject accident that occurred on December 3, 2020. (See Exhibit A for the City’s propounded Special Interrogatories, Set Two, Nos. 66-68.)
5. Plaintiff has no current complaints of pain in connection with the subject accident that occurred on December 3, 2020. (See Exhibit A for the City’s propounded Special Interrogatories, Set Two, No. 51.)
6. Plaintiff has no facts, witnesses or documents to support his cause of action for dangerous condition of public property against the City of Huntington Beach. (See Exhibit A for the City’s propounded Special Interrogatories, Set Two, Nos. 40-42).
7. Plaintiff has no facts to support how long he contends the alleged dangerous condition existed prior to his bicycle accident on December 3, 2020. (See Exhibit A for the City’s propounded Special Interrogatories, Set Two, Nos. 61-62).
(Motion, 6:25-7:19.)
Plaintiff’s initial failure to respond to Defendant’s discovery requests, resulting in Defendant bringing motions to compel discovery, and the Court’s subsequent August 25, 2022 Order compelling Plaintiff to serve discovery responses and Plaintiff’s failure to comply said order similarly does not warrant issue sanctions at this time. The Court will allow Plaintiff one final opportunity to provide further responses.
Plaintiff to serve the responses to discovery pursuant to the Court’s August 25, 2022 Order within 20 days of the notice of ruling.
Monetary Sanctions
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).) The court shall impose a monetary 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. (Ibid.)
Here, there is no showing that Plaintiff acted with substantial justification or that other circumstances make the imposition of monetary sanctions unjust.
Defendant’s counsel provides that she spent three hours preparing the motion and anticipates three hours responding to an anticipated opposition and attending the hearing for a total of six hours, at $150/hour resulting in a total of $900, but requests half the fees for a sum of $450 as Plaintiff is in pro per. (Rose Decl., ¶ 12.)
The Court GRANTS Defendant’s request for monetary sanctions against Plaintiff in the amount of $450, to be paid within 30 days of the notice of ruling.
Although the Court denies terminating and issue sanctions at this time, the Court warns Plaintiff that “. . . any further failure to comply with the court’s discovery orders could result in terminating sanctions.” (See Electronic Funds Solutions v. Murphy (2005) 134 Cal.App.4th 1161, 1183.) Indeed, the Court is frankly likely to grant a future request for terminating sanctions if Plaintiff continues to willfully defy this Court’s orders.
To that end, the Court will calendar a defense motion for terminating sanctions on February 2, 2023 at 1:30 p.m. Moving papers, opposition papers, and reply papers are due per code. If discovery has been provided, moving party is to contact the clerk and take the hearing off-calendar.
Defendant shall give notice of this ruling and the Court’ s August 25, 2022 Order.