Judge: Robert B. Broadbelt, Case: 23STCV01965, Date: 2025-01-13 Tentative Ruling

Case Number: 23STCV01965    Hearing Date: January 13, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Christopher Lemole           

RESPONDING PARTY:       Defendant Dean Scott-Smith

Amended Motion for Terminating and Monetary Sanctions

The court considered the amended moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Christopher Lemole (“Plaintiff”) moves the court for an order (1) imposing terminating sanctions against defendant Dean Scott-Smith (“Defendant”), striking Defendant’s answer, entering Defendant’s default, and entering default judgment in favor of Plaintiff and against Defendant in the amount of $53,899.10, (2) imposing monetary sanctions against Defendant in the amount of $25,000, and (3) imposing monetary sanctions in favor of Plaintiff and against Defendant in the amount of $1,500.  Plaintiff moves for this relief on the ground that Defendant failed to comply with the court’s March 6, 2024 order.

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.)¿ “Misuses 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.”¿ (Code Civ. Proc., § 2023.010, subds. (d), (g).)¿ “When exercising its discretion to determine which form of sanction is most appropriate for a discovery violation, a trial court should consider various factors, including ‘the importance of the materials that were not produced—from the perspective of the offended party’s ability to litigate the case—and what prejudice, if any, the offended party suffered….’”¿ (Victor Valley Union High School District v. Superior Court of San Bernardino County (2023) 91 Cal.App.5th 1121, 1158.) 

On March 6, 2024, the court issued an order granting Plaintiff’s motion to compel Defendant’s responses to Plaintiff’s Requests for Production of Documents, Set One.  (Mar. 6, 2024 Order, p. 2:22-23.)  The court ordered Defendant (1) to serve responses to the Requests for Production of Documents and (2) to produce responsive documents to those requests within 20 days of the date of service of the court’s order.  (Mar. 6, 2024 Order, pp. 2:24-3:2.)  The court also ordered Defendant to pay monetary sanctions to Plaintiff in the amount of $961.65 within 30 days of the date of service of the court’s order.  (Mar. 6, 2024 Order, p. 3:3-4.)  On May 28, 2024, Plaintiff filed a Proof of Service in which counsel stated that, “[o]n March 22, 2024, [counsel] mailed . . . the following documents: Order Re: Plaintiff’s Motion to Compel Responses to Discovery” to Defendant at his address of record.  (May 28, 2024 Proof of Service, ¶¶ 3, 5 [the order was served on Defendant at “54 Sole Street [¶] Eureka, CA 95503”]; Def. Answer filed Mar. 1, 2023, PLD-C-010, p. 1 [listing Defendant’s address to be 54 Sole Street, Eureka, CA, 95503].)  Plaintiff submitted evidence establishing that Defendant did not serve responses to the subject discovery within the time ordered by the court and had not served responses as of the date that Plaintiff filed the amended motion.  (Hemming Decl., ¶ 12.)

Defendant has opposed this motion, contending that (1) Defendant did not receive, inter alia, the subject Requests for Production, Plaintiff’s motion to compel his responses to the Requests for Production, and a copy of the court’s March 6, 2024 order granting Plaintiff’s motion to compel, (2) Defendant was not aware of the outstanding discovery until he spoke to Plaintiff’s counsel telephonically on November 21, 2024, and (3) Defendant retained counsel to address the pending discovery issues on December 4, 2024.  (Opp., pp. 2:11-13, 2:17-18, 3:2-4, 4:4-6.)  However, Defendant did not submit competent evidence in support of those assertions. 

Defendant has submitted only the declaration of his counsel, who does not have personal knowledge of Defendant’s non-receipt of the subject discovery, motion, and court order.  (Stone Decl., ¶¶ 1, 5, 7, 13.)  Defendant did not submit his own declaration attesting to these facts.  Moreover, the proofs of service of the Requests for Production of Documents, motion to compel, and copy of the court order all state that those documents were served on Defendant at his address of record.  (Def. Answer filed Mar. 1, 2023, PLD-C-010, p. 1 [Defendant’s address of record is 54 Sole Street, Eureka, CA, 95503]; Pl. June 20, 2023 Mot. to Compel, Hemming Decl., Ex. B, p. 5 [Proof of Service of Requests for Production of Documents on Defendant by mail at the address 54 Sole Street, Eureka, CA 95503]; Feb. 29, 2024 Proof of Service, ¶¶ 3, 4, 5 [motion to compel was served on Defendant by mail at the address 54 Sole Street, Eureka, CA 95503].)  The court further notes, and finds relevant, that although Defendant’s counsel has stated that “Defendant will participate in the discovery process with no further delays[,]” Defendant did not submit evidence establishing that he has served responses to Plaintiff’s Requests for Production of Documents as ordered by the court.  (Stone Decl., ¶ 20 [emphasis added].) 

The court therefore finds that Plaintiff has shown that Defendant failed to comply with the court’s March 6, 2024 order.  The court, however, finds that terminating sanctions are not appropriate for the reasons set forth below, and therefore exercises its discretion to deny Plaintiff’s request for terminating sanctions.  (Code Civ. Proc., § 2023.030, subd. (d).)

First, the court acknowledges that the court has issued monetary sanctions against Defendant, which has not produced compliance with the court’s orders.  However, the court has not yet issued (and Plaintiff has not requested) other less severe sanctions against Defendant, such as issue and evidence sanctions.  (Victor Valley Union High School District, supra, 91 Cal.App.5th at p. 1158 [“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination[,]” and the continuing misuse of the discovery process will warrant incrementally harsher sanctions] [internal quotation marks and citations omitted].)

Second, although the court has concluded that Defendant did not submit competent evidence establishing that he did not receive the discovery and learned of the outstanding discovery in November 2024, the court has considered Defendant’s conduct in opposing this motion and retaining counsel who has stated, in his declaration, that Defendant shall participate in the discovery process.  (Stone Decl., ¶ 20.)

Third, the court finds, in order to remedy the prejudice suffered by Plaintiff as a result of Defendant’s failure to comply with the March 6, 2024 order, that (1) additional monetary sanctions are warranted, and (2) it is appropriate to order Defendant to, again, serve responses to the subject discovery.  (Victor Valley Union High School District, supra, 91 Cal.App.5th at p. 1158; Code Civ. Proc., § 2023.030, subd. (a).)  The court finds that $1,500 (5 hours x $300 hourly rate) is a reasonable amount of sanctions to impose against Defendant in connection with this motion.  (Hemming Decl., ¶¶ 14-15.)

ORDER

            The court grants in part plaintiff Christopher Lemole’s motion for terminating and monetary sanctions as follows.

            Pursuant to Code of Civil Procedure section 2031.300, the court orders defendant Dean Scott-Smith (1) to serve on plaintiff Christopher Lemole full and complete verified responses, without objections, to plaintiff Christopher Lemole’s Request for Production of Documents or Things, Set One, that comply with Code of Civil Procedure sections 2031.210 through 2031.250, and (2) to produce to plaintiff Christopher Lemole all documents and things in defendant Dean Scott-Smith’s possession, custody, or control which are responsive to those requests, within 20 days of the date of service of this order.  

            The court orders defendant Dean Scott-Smith to pay monetary sanctions to plaintiff Christopher Lemole in the amount of $1,500 within 30 days of the date of service of this order.

            The court denies all other relief requested.

            The court orders plaintiff Christopher Lemole to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 13, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court