Judge: Robert C. Longstreth, Case: 37-2022-00013339-CU-PN-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Professional Negligence Motion Hearing (Civil) 37-2022-00013339-CU-PN-CTL GUASSAC VS SEVILLA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 01/03/2024

Plaintiff Carlos Guassac's Amended Motion to Strike Answer of Defendants; and to Enter a Default Judgment Against Defendants as a Discovery Terminating Sanction (ROA 95) is DENIED.

In his opposition, Defendant Sevilla asserts the motion must be denied because it is based on extrinsic evidence outside the pleadings. (Code Civ. Proc. §§ 436-437.) This argument has no merit. Plaintiff seeks terminating sanctions against Defendants, which are available under the Discovery Act. (Code Civ. Proc. § 2023.030(d).) Not only is extrinsic evidence permissible, it is required in order for Plaintiff to meet his burden to demonstrate Defendants have engaged in a misuse of the discovery process.

In his motion, Plaintiff asserts Defendants failed to comply with the court's November 17, 2023 order granting his discovery motions, and asserts terminating sanctions are appropriate against both Defendants on these grounds. The court's November 17, 2023 orders Defendant Law Offices to respond to Plaintiff's special interrogatories, form interrogatories, and requests for production. (ROA 80.) The court also granted Plaintiff's motion to deem his requests for admission propounded on Defendant Law Offices admitted. (Ibid.) Defendant Sevilla asserts Defendants did comply with the court's November 17, 2023 order because they served responses to the discovery requests on January 31, 2024. Plaintiff's reply asserts the responses were actually served on April 25, 2024, not in January, and that even these responses remain deficient.

Regardless of how this dispute would be resolved (although the court does note that a review of the responses indicates there are material deficiencies: objections are still asserted even though they have been waived; many responses still lack a substantive response; no documents were produced), the court is not persuaded that terminating sanctions are appropriate at this stage. Thus far, no sanctions have been imposed related to this discovery dispute. California law reflects 'an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.' (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (citation omitted). '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].' (Id. at pp. 604-605.) Moreover, terminating sanctions are generally only permissible where the court finds the failure to comply with a discovery order was 'willful.' (See, e.g., Aghaian v. Minassian (2021) 64 Cal.App.5th 603, Calendar No.: Event ID:  TENTATIVE RULINGS

3080173  2 CASE NUMBER: CASE TITLE:  GUASSAC VS SEVILLA [IMAGED]  37-2022-00013339-CU-PN-CTL 618-19; see also Moofly Productions, LLC v. Favila (2020) 46 Cal.App.5th 1, 11, 'terminating sanctions are appropriate only if a party's failure to obey a court order actually prejudiced the opposing party.') Here, although the court is persuaded, as indicated above, that Defendant Law Office still has not fully complied with the court's November 17, 2023 order, Plaintiff has not offered evidence that Defendant Law Office's failure to comply was willful, nor that Defendant Law Office's failure to comply has prejudiced Plaintiff, particularly given that the court granted Plaintiff's motion to deem all eighty of Plaintiff's requests for admissions as admitted.

Finally, Plaintiff's notice of motion did not request any other type of sanctions aside from terminating sanctions. Accordingly, the court has not considered whether any other type of sanctions would be appropriate. (Code Civ. Proc. § 2023.040.) The court has only concluded terminating sanctions are not appropriate against Defendant Law Offices at this time.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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