Judge Robert B. Broadbelt, Case Number: 23STCV02331, Date: 2023-10-19 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV02331, Date: 2023-10-19 Tentative Ruling

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

Defendant Airgas USA, LLC (“Defendant”) moves the court for an order (1) compelling plaintiff Joe Ledesma (“Plaintiff”) to comply with the court’s October 20, 2023 orders (i) to serve further answers to Defendant’s Form Interrogatories – Employment, and (ii) to produce responsive documents to Defendant’s Requests for Production, (2) imposing evidence, issue, or terminating sanctions against Plaintiff for his misuse of the discovery process, (3) awarding monetary sanctions in favor of Defendant and against Plaintiff in the amount of $6,435, and (4) awarding sanctions against Plaintiff in the amount of $1,500, payable to the court pursuant to Code of Civil Procedure section 177.5.

If a party engages in the 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].)¿

On October 20, 2023, the court issued two orders (1) granting Defendant’s motion to compel Plaintiff’s further responses to its Form Interrogatories – Employment and ordering Plaintiff to serve full and complete answers to the specified interrogatories within 20 days of the date of the order, and (2) granting Defendant’s motion to compel Plaintiff’s further responses to its Requests for Production of Documents and ordering Plaintiff to serve written further responses and to produce responsive documents to those demands within 20 days of the date of the order. (Oct. 20, 2023 Order re Mot. to Compel Further Resp. to Form Interrogatories, p. 2:10-18; Oct. 20, 2023 Order re Mot. to Compel Further Resp. to Req. for Prod., p. 2:10-18.) The court also ordered Plaintiff to pay monetary sanctions to Defendant. (Ibid.)

Defendant has produced evidence showing that (1) on December 1, 2023 (i.e., more than 20 days after the date of the court’s October 20, 2023 orders), Plaintiff served supplemental responses to Defendant’s Form Interrogatories – Employment and Requests for Production, and (2) as of the date that Defendant filed this motion, Plaintiff had not (i) served complete responses to interrogatories numbers 204.2, subdivision (c) (because Plaintiff did not state the date on which the illness or injury occurred), 204.5 (because Plaintiff did not state whether he needed any accommodation to perform any function of his job), and 210.2 (because Plaintiff did not set forth how he calculated the amount of lost wages, lost overtime and raises, and lost benefits), or (ii) produced any responsive documents. (Ehsani-Nia Decl., ¶¶ 11-12, 16; Ehsani-Nia Decl., Ex. 2 [Form Interrogatories – Employment]; Ehsani-Nia Decl., Ex. 11, Pl. Supp. Responses to Form Interrogatories, pp. 18:8-21:8 [supplemental response to no. 204.2], 21:20 [supplemental response to 204.5], 26:16-17 [supplemental response to no. 210.2].)

Thus, the court finds that Defendant has submitted evidence showing that Plaintiff did not fully comply with the court’s October 20, 2023 orders (1) to produce discovery within 20 days of the date of the court’s orders,[1] (2) to produce complete answers to interrogatories numbers 204.2, subdivision (c), 204.5, and 210.2, and (3) to produce responsive documents within 20 days of the date of the court’s order granting Defendant’s motion to compel further responses to its document demands.

In opposition, Plaintiff submits the declaration of his counsel, who asserts that “Plaintiff has also served all responsive documents in his possession.” (Rand-Lewis Decl., ¶ 12.) Plaintiff’s counsel has further stated that he erroneously believed all responsive documents had been served due to a miscommunication with others in the office. (Ibid.) While Defendant concedes that Plaintiff made an additional production of documents with his opposition, Defendant contends that the production is still deficient because it was “not uniformly identified with a Bates number” and therefore “there is no way to determine whether a full production has been made.” (Reply, pp. 4:25-26, 5:22-24.)

First, the court denies Defendant’s request that the court order Plaintiff to comply with its October 20, 2023 orders. However, in order to remedy the prejudice caused to Defendant by Plaintiff’s failure to fully comply with the court’s orders, the court will order Plaintiff (1) to serve further, full and complete answers to interrogatories numbers 204.2, subdivision (c), 204.5, and 210.2, and (2) to serve further written responses to demand numbers 13, 15-44, and 46-59 (i.e., the Requests for Production of Documents to which Plaintiff stated responsive documents would be produced) that comply with Code of Civil Procedure section 2031.280’s requirement that “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” (Ehsani-Nia Decl., Ex. 12, Supp. Responses to Requests, pp. 2:13-14, 2:19-5:23.)

Second, the court finds, after considering the totality of the circumstances, including that Plaintiff has partially complied with the court’s October 20, 2023 orders, that terminating sanctions against Plaintiff are not appropriate. (Los Defensores, Inc., supra, 223 Cal.App.4th at p. 390.) The court therefore exercises its discretion to deny Defendant’s motion for terminating sanctions.

Third, the court denies Defendant’s request for evidence or issue sanctions against Plaintiff because (1) Defendant did not comply with California Rules of Court, rule 3.1345 by failing to file a separate statement in support of its request for issue and evidence sanctions, and (2) Defendant has not shown, in its moving papers, how its proposed issue or evidence sanctions to prohibit Plaintiff from offering into evidence any documents that support Plaintiff’s 12 causes of action and claims for general, special, emotional distress, and punitive damages are tailored to the harm suffered by Plaintiff’s failure (i) to serve full and complete answers to certain of the interrogatories and (ii) to produce responsive documents within the time ordered by the court. (Cal. Rules of Ct., rule 3.1345 [“The motions that require a separate statement include a motion: [¶¶] For issue or evidentiary sanctions”]; Mot., pp. 15:27-16:3 [proposed issue or evidence sanction]; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [“The trial court should select a sanction that is tailor[ed] . . . to the harm caused by the withheld discovery”] [internal quotations and citations omitted].)

Fourth, the court grants Defendant’s request for monetary sanctions because Defendant has shown, as set forth above, that Plaintiff did not fully comply with the court’s October 20, 2023 orders by failing to serve full and complete responses to the discovery and to produce documents within the time ordered by the court. (Code Civ. Proc., §§ 2031.310, subd. (i), 2030.300, subd. (e), 2023.030, subd. (a).) The court finds that $2,250 (5 hours x $450 hourly rate) is a reasonable amount of sanctions to impose against Plaintiff in connection with this motion. (Ehsani-Nia Decl., ¶¶ 17-18.)

Finally, the court denies Defendant’s request that the court impose monetary sanctions against Plaintiff in the amount of $1,500, to be paid to the court. (Code Civ. Proc., § 177.5.)

The court grants in part defendant Airgas USA, LLC’s motion to compel compliance and for sanctions as follows.

The court orders plaintiff Joe Ledesma (1) to serve on defendant Airgas USA, LLC further, full and complete answers to defendant Airgas USA, LLC’s Form Interrogatories – Employment, numbers 204.2, subdivision (c), 204.5, and 210.2, which comply with Code of Civil Procedure sections 2030.210-2030.250, within 20 days of the date of this order, and (2) to serve on defendant Airgas USA, LLC further written responses to defendant Airgas USA, LLC’s Requests for Production of Documents, numbers 13, 15-44, and 46-59, which comply with Code of Civil Procedure section 2031.280, within 20 days of the date of this order.

The court denies defendant Airgas USA, LLC’s motion for terminating, issue, and evidence sanctions.

The court orders plaintiff Joe Ledesma to pay monetary sanctions in the amount of $2,250 to defendant Airgas USA, LLC within 30 days of the date of this order.

[1] The court notes that, in opposition, Plaintiff appears to assert that he calculated his deadline to serve responses and to pay monetary sanctions based on the date of service of the notice of rulings. (Opp., p. 3:4-13.) However, the court did not order Plaintiff to serve responses and to produce responsive documents within 20 days of the date of service of the order, and instead ordered Plaintiff to serve responses and to produce responsive documents “within 20 days of the date of this order.” (Oct. 20, 2023 Order re Mot. to Compel Further Responses to Interrogatories, p. 2:17-18; Oct. 20, 2023 Order re Mot. to Compel Further Responses to Requests, p. 2:17-18.)

joe ledesma ; Plaintiff, vs. airgas usa, llc , et al.; Defendants.	Case No.:	23STCV02331

	Hearing Date:	March 27, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: defendant’s motion to compel compliance and for sanctions