Judge Robert B. Broadbelt, Case Number: 21STCV02859, Date: 2023-10-02 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 21STCV02859, Date: 2023-10-02 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving papers filed in connection with each motion. No opposition papers were filed.

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) has filed three motions requesting that the court impose terminating sanctions against defendants Midland Hardware Company No. 4 (“Midland”) and Kittrich Corp. (“Kittrich”) (collectively, “Defendants”), or alternatively, imposing issue or evidence sanctions against Defendants, all of which are pending before the court.[1] The court discusses the three motions together in the interest of efficiency.

If a party engages in a misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions.¿ (Code Civ. Proc., § 2023.030.)¿ Code of Civil Procedure section 2023.010 provides, in relevant part, that “[m]isuses of the discovery process include, but are not limited to, the following: . . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . . (g) Disobeying a court order to provide discovery.”¿¿¿¿

“The trial court may order a terminating sanction for discovery abuse ‘after considering 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.’”¿ (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)¿ “Generally, ‘[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.’”¿ (Los Defensores, supra, 223 Cal. App. 4th at p. 390 [citation omitted].)¿¿¿

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, supra, 223 Cal. App. 4th at p. 390, citing Lang, supra, 77 Cal. App. 4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 [terminating sanctions imposed after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 [terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)¿¿¿

In connection with its three pending motions for sanctions, Plaintiff has submitted evidence showing that (1) defendant Midland has not complied with three court orders compelling it to provide discovery, and (2) defendant Kittrich has not complied with two court orders compelling it to provide discovery.

A. Defendants’ Failure to Comply with Court Orders Compelling Responses to Requests for Production of Documents

On January 26, 2023, the court issued an order granting Plaintiff’s motion to compel Midland’s initial responses to Plaintiff’s Requests for Production, ordering Midland to serve written responses and produce responsive documents within 20 days of the date of service of the order. (Jan. 26, 2023 Order, p. 2:15-22.) Plaintiff served a notice of the court’s January 26, 2023 ruling on Midland by electronic service and certified mail on February 1, 2023. (Feb. 1, 2023 Notice of Hearing, Proof of Service.) As of the date that Plaintiff filed the September 5, 2023 motion for sanctions, Plaintiff had “not received responses to Requests for Production, Set One,” from Midland. (Yeroushalmi Decl., ¶ 12.)

Similarly, on February 2, 2023, the court issued an order granting Plaintiff’s motion to compel Kittrich’s initial responses to Plaintiff’s Requests for Production, ordering Kittrich to serve written responses and produce responsive documents within 20 days of the date of service of the order. (Feb. 2, 2023 Order, p. 2:16-22.) Plaintiff served a notice of the court’s February 2, 2023 ruling on Kittrich by electronic service and certified mail on April 17, 2023. (April 18, 2023 Notice of Ruling, Proof of Service.) As of the date that Plaintiff filed the September 5, 2023 motion for sanctions, Plaintiff had “not received responses to Requests for Production, Set One,” from Kittrich. (Yeroushalmi Decl., ¶ 12.)

Thus, the court finds that Plaintiff has shown that Defendants each violated one court order compelling them to produce responses to Plaintiff’s Requests for Production of Documents.

The court further finds that Defendants’ failure to serve full and complete written responses and to produce responsive documents is prejudicial to Plaintiff, because the requests demand information central to Plaintiff’s cause of action for violation of Proposition 65. For example, the Requests for Production of Documents request information regarding Defendants’ sale of the subject bath mats, including, specifically, documents relating to the location of DINP in or on the bath mats (numbers 16-18, 20); documents relating to any tests performed on the bath mats to detect the presence of any Proposition 65-listed chemical, or Defendants’ efforts to ensure that their products comply with Proposition 65 (numbers 19, 33); documents that include any warnings that the bath mats contained a Proposition 65-listed chemical (number 21); and documents relating to any recall initiated by Defendants or directed by another entity of the bath mats (number 22). (Yeroushalmi Decl., Ex. A, Requests for Production to Midland, p. 7, ¶ 15 [defining Test], p. 8, ¶ 20 [defining Product 1], pp. 11:4-12:3, 13:10-12; Yeroushalmi Decl., Ex. B, Requests for Production to Kittrich, p. 7, ¶ 15 [defining Test], p. 8, ¶ 20 [defining Product 1], pp. 11:4-12:3, 13:10-12.) These requests are central to Plaintiff’s claim that Defendants “knowingly and intentionally exposed California consumers and users of [the subject] Bath Mat, which Defendants manufactured, distributed, or sold . . ., to DINP [Diisononyl Phthalate], without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure[,]” in violation of Proposition 65. (Compl., ¶ 28.)

B. Defendant Midland’s Failure to Comply with Court Order Compelling Its Responses to Form Interrogatories

On January 24, 2023, the court issued an order (1) granting Plaintiff’s motion to compel Midland’s initial responses to Plaintiff’s Form Interrogatories, Set One, and (2) ordering Midland to serve responses within 20 days of the date of the order. (Jan. 24, 2023 Order, p. 2:13-18.) Plaintiff served a notice of the court’s January 24, 2023 order on Midland by electronic service and certified mail on February 1, 2023. (Feb. 1, 2023 Notice of Hearing.) As of the date that Plaintiff filed its August 29, 2023 motion, Midland had not served its responses on Plaintiff. (Yeroushalmi Decl., ¶ 7.)

Thus, the court finds that Plaintiff has shown that Midland violated a court order compelling it to serve responses to Plaintiff’s Form Interrogatories, Set One.

The court further finds that Midland’s failure to serve full and complete written responses to Plaintiff’s Form Interrogatories, Set One, is prejudicial to Plaintiff, because the interrogatories request information central to Plaintiff’s cause of action for violation of Proposition 65. For example, interrogatory numbers 12.1 and 12.2 request the identification of individuals who witnessed, were interviewed, or who provided a written or recorded statement about the subject incident (here, defined to be the manufacture, distribution, importation, and/or sale of the subject bath mat). (Yeroushalmi Decl., Ex. A, pp. 5, Nos. 12.1-12.3, 9, Sec. 4(a)(2) [defining the term “incident”].) Further, interrogatory number 15.1 requests the identification of Midland’s denial of each material allegation and each special or affirmative defense in the pleadings, which is necessary to apprise Plaintiff of the defenses that Midland intends to assert and the facts that it intends to dispute. (Id., p. 6, No. 15.1.)

C. Defendants’ Failure to Comply with Court Orders Compelling Responses to Special Interrogatories

On January 23, 2023, the court issued an order (1) granting Plaintiff’s motion to compel Midland’s responses to Plaintiff’s Special Interrogatories, Set One, and (2) ordering Midland to serve its responses on Plaintiff within 20 days of the date of service of the order. (Jan. 23, 2023 Order, p. 2:13-18.) Plaintiff served Midland with a notice of the court’s January 23, 2023 order on February 1, 2023, by electronic service and certified mail. (Feb. 1, 2023 Notice of Hearing.) On January 31, 2023, the court issued an order (1) granting Plaintiff’s motion to compel Kittrich’s initial responses to Plaintiff’s Special Interrogatories, Set One, and (2) ordering Kittrich to serve its responses on Plaintiff within 20 days of the date of service of the order. (Jan. 31, 2023 Order, p. 2:13-19.) Plaintiff served Kittrich with a notice of the court’s January 31, 2023 order on April 17, 2023, by electronic service and certified mail. (April 18, 2023 Notice of Ruling re: Hearing on Motion to Compel Kittrich to Provide Responses to Special Interrogatories.) However, as of the date that Plaintiff filed its August 30, 2023 motion for sanctions, Plaintiff had “not received responses to Special Interrogatories, Set One, from Defendants[.]” (Yeroushalmi Decl., ¶ 12.)

Thus, the court finds that Plaintiff has shown that Defendants each violated one court order compelling them to serve responses to Plaintiff’s Special Interrogatories.

The court further finds that Defendants’ failure to serve full and complete written answers is prejudicial to Plaintiff, because the interrogatories request information that is central to Plaintiff’s cause of action for violation of Proposition 65. For example, the Special Interrogatories request information relating to the types of the subject bath mats purchased and sold during the relevant period (numbers 2-4), the manufacturers, distributors, and retailers of the subject bath mat (numbers 16-18), the tests that Defendants conducted on any version of the subject bath mat to determine whether any Proposition 65-listed chemicals or DINP were present and the results of those tests (numbers 23-24), and Defendants’ screening processes for DINP in the subject bath mat and the person(s) most qualified to testify as to that process (numbers 36-37). (Yeroushalmi Decl., Ex. A, Special Interrogatories to Midland, pp. 7:1-9, 8:24-9:5, 9:18-24, 11:15-20; Yeroushalmi Decl., Ex. B, Special Interrogatories to Kittrich, pp. 6:23-7:3, 8:19-27, 9:12-18, 11:7-12.) These interrogatories seek information that is central to Plaintiff’s claim that Defendants “knowingly and intentionally exposed California consumers and users of [the subject] Bath Mat, which Defendants manufactured, distributed, or sold . . ., to DINP [Diisononyl Phthalate], without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure[,]” in violation of Proposition 65. (Compl., ¶ 28.)

Based on the evidence presented, and in light of the fact that Defendants did not file opposition papers in connection with any of Plaintiff’s three motions for sanctions, the court finds that (1) defendant Midland has engaged in conduct that is a misuse of the discovery process by (i) willfully disobeying the court’s January 23, 2023, January 24, 2023, and January 26, 2023 orders to serve responses and produce responsive documents to discovery, and (ii) failing to respond to authorized methods of discovery (Plaintiff’s Requests for Production of Documents, Form Interrogatories, and Special Interrogatories), and (2) defendant Kittrich has engaged in conduct that is a misuse of the discovery process by (i) willfully disobeying the court’s January 31, 2023 and February 2, 2023 orders to serve responses and produce responsive documents to discovery, and (ii) failing to respond to authorized methods of discovery (Plaintiff’s Requests for Production of Documents and Special Interrogatories). (Code Civ. Proc., § 2023.010, subds. (g), (d).)

The court has also concluded that Defendants’ failure to serve answers and produce responsive documents to the subject sets of discovery is prejudicial to Plaintiff, since the discovery requests at issue go to the heart of Plaintiff’s claim that Defendants violated Proposition 65 by failing to provide a clear and reasonable warning of the presence of DINP to California consumers and users of the subject product as set forth above. (Compl., ¶ 29.) Further, the evidence shows that the less severe sanction of monetary sanctions issued by the court against Midland in the court’s January 23, 2023, January 24, 2023, and January 26, 2023 orders and against Kittrich in the court’s January 31, 2023 and February 23, 2023 orders has not produced compliance by Defendants with the discovery rules or the court’s orders. Finally, Defendants have not filed opposition papers or other evidence with the court disputing their failure to comply with the court’s orders.

The court therefore finds that it is appropriate, and exercises its discretion, to impose terminating sanctions against Defendants pursuant to Code of Civil Procedure section 2023.030, subdivision (d).

The court denies Plaintiff’s alternative requests for the imposition of issue and/or evidence sanctions as moot.

The court grants plaintiff Consumer Advocacy Group, Inc.’s (1) motion for terminating sanctions, or alternatively, issue or evidence sanctions against defendants Midland Hardware Company No. 4 and Kittrich Corporation, filed on September 5, 2023, (2) motion for terminating sanctions, or alternatively, issue or evidence sanctions against defendant Midland Hardware Company No. 4, filed on August 29, 2023, and (3) motion for terminating sanctions, or alternatively, issue or evidence sanctions against defendants Midland Hardware Company No. 4 and Kittrich Corporation, filed on August 30, 2023, as follows.

The court grants plaintiff Consumer Advocacy Group, Inc.’s motions for terminating sanctions against defendants Midland Hardware Company No. 4 and Kittrich Corporation.

The court denies as moot all other relief requested in plaintiff Consumer Advocacy Group, Inc.’s motions for sanctions.

The court orders a Request for Entry of Default (form CIV-100) as to defendants Midland Hardware Company No. 4 and Kittrich Corporation no later than November 6, 2023.

The court sets an Order to Show Cause re entry of default and default judgment for hearing on February 5, 2024, at 8:30 a.m., in Department 53.

The court orders plaintiff Consumer Advocacy Group, Inc. to file default judgment documents required by California Rules of Court, rule 3.1800 (including a proposed judgment on form JUD-100) no later than December 15, 2023.

The court vacates as moot the October 30, 2023 hearing on plaintiff Consumer Advocacy Group, Inc.’s on Motion for Summary Judgment or, in the Alternative, Summary Adjudication.

The court orders that the Final Status Conference scheduled for November 22, 2024, is vacated.

The court orders plaintiff Consumer Advocacy Group, Inc. to give notice of this ruling.

[1] On October 2, 2023, the court issued an order continuing the hearing on one of Plaintiff’s motions for sanctions so that Plaintiff could cure defects with service. Thereafter, on October 2, 2023, Plaintiff filed a Proof of Service stating that it served Defendants with the papers filed in connection with that motion on September 5, 2023, by mail and electronic service.

consumer advocacy group, inc. ; Plaintiff, vs. midland hardware company no. 4 , et al.; Defendants.	Case No.:	21STCV02859

	Hearing Date:	October 27, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: (1) plaintiff’s motion for terminating, issue, or evidence sanctions (2) plaintiff’s motion for terminating, issue, or evidence sanctions (3) plaintiff’s motion for terminating, issue, or evidence sanctions