Judge: Salvatore Sirna, Case: 21PSCV00313, Date: 2023-01-24 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 21PSCV00313    Hearing Date: January 24, 2023    Dept: G

Plaintiff Isabel M. Coats’s Motion for an Order Imposing Sanctions against Defendant Gregory Ward for his Failure to Obey Multiple Court Orders to Provide Discovery

Respondent: Defendant Gregory Ward (opposition filed three days late)

TENTATIVE RULING

Plaintiff Isabel M. Coats’s Motion for an Order Imposing Sanctions against Defendant Gregory Ward for his Failure to Obey Multiple Court Orders to Provide Discovery is GRANTED and terminating sanctions are imposed. Defendant Gregory Ward’s General Denial and Affirmative Defenses to Plaintiff’s Complaint is HEREBY STRICKEN and Default is entered against Defendant as of this date.

BACKGROUND

In this malicious prosecution action, Defendant Gregory Ward asked Plaintiff Isabel M. Coats, Defendant’s mother, to help finance the family cabin’s construction in Utah. While Plaintiff initially formed a partnership with Defendant and provided financial support for the project, Plaintiff agreed to be bought out and instead provided finances in the form of a loan. Defendant then claimed overpayment of Plaintiff and filed an unsuccessful breach of contract claim against Plaintiff, while also failing to make payments on Plaintiff’s loan.

On April 21, 2021, Plaintiff, individually and through Isabelle Coats Newman as successor trustee of the inter vivos trust titled Isabel M. Coats Survivor’s Trust Created Under the Terms of the Isabel and Walter Coats Trust Restated January 26, 1994, filed a complaint against Defendant and Does 1 to 10, alleging the following causes of action: (1) malicious prosecution, (2) financial elder abuse, and (3) accounting.

On March 9, 2022, the court granted Plaintiff’s motion to compel Defendant’s responses to Form Interrogatories Set One (15.1, 50.1, 50.2, 50.4, 50.5, and 50.6) and ordered Defendant to provide the original responses and verifications. The court ordered Defendant to provide appropriate and verified responses within 30 days.

On May 26, 2022, the court granted Plaintiff’s motion to compel Defendant’s responses to Request for Production of Documents (Nos. 1-9, 12, 17-28, 33, 35, 36, 52-55, and 58-69) and ordered Plaintiff to provide the original attorney signature page dated December 2, 2021, and the original verification page dated November 16, 2021. The court ordered responses within 30 days.

On October 26, 2022, the court granted Plaintiff’s motion to deem requests for admissions admitted and Plaintiff’s motion to compel Defendant’s responses to Form Interrogatories (17.1, 15.1, 50.1, 50.2, 50.4, 50.5, and 50.6. The court also granted Plaintiff’s motion to compel responses to Special Interrogatories No. 2 and 3, and ordered Defendant comply with the court’s previous orders to provide originals of Defendant’s first interrogatory responses and originals of Defendant’s verifications. The court ordered responses within 14 days.

On December 23, 2022, Plaintiff filed the present motion. A hearing on the motion is set for January 24, 2023. Also, a mandatory settlement conference is set for April 20, a final status conference is set for June 28, and a jury trial is set for July 11.

ANALYSIS

Plaintiff has requested issue and terminating sanctions against Defendant on the grounds that Defendant has refused to comply with this court’s previous orders. The court agrees and imposes terminating sanctions.

As an initial matter, the court addresses Defendant’s opposition, erroneously titled as a motion. During the October 26, 2022 hearing, the court informed Defendant that Defendant’s filings were not in compliance with the California Rules of Court. The court noted Defendant did not use pleading paper and directed Defendant to comply with court rules when submitting/filing documentation. Despite this directive, the court notes Defendant’s opposition does not comply with court rules. First, Defendant’s opposition was filed three (3) days late on January 13, 2023, as all oppositions must be submitted no later than nine court days before the hearing date. (Code Civ. Proc., § 1005, subd. (b).) Second, Defendant’s opposition does not meet the formatting requirements established by Rules 2.100 to 2.119 of the California Rules of Court. Third, Defendant’s opposition exceeds the 15-page limit for oppositions and while exhibits and declarations do not count towards the page limit, Defendant’s filing is disorganized and does not clearly identify exhibits. (Cal. Rules of Court 3.1113, subd. (d).) Fourth, Defendant has not provided any proof of service demonstrating if or how the opposition was served on Plaintiff in compliance with Code of Civil Procedure section 1005, subdivision (c).

Accordingly, given Defendant is already on notice of Defendant’s obligation to comply with court rulings and has failed to demonstrate any good cause for failing to timely file, the court declines to consider Defendant’s untimely and defective opposition. (Cal. Rules of Court 3.1300, subd. (d); Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 261-262.)

The court may impose a monetary sanction, issue sanction, evidence sanction, terminating sanction, or contempt sanction on a party who engages in conduct that misuses the discovery process. (Code Civ. Proc., § 2023.030.) Misuse of the discovery process includes “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subd. (d), (g).) Because the purpose of sanctions is remedial and not punitive, sanctions should “serve to remedy the harm caused to the party suffering the discovery misconduct.” (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 74.) “[A]bsent unusual circumstances, nonmonetary sanctions are¿warranted only if a party willfully fails to comply with a court order.” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618-619.) Terminating sanctions should only be ordered when there has been previous noncompliance and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) 

In this case, Plaintiff requests issue or terminating sanctions on the grounds that (1) Defendant has failed to provide further responses to Form Interrogatory 15.1, (2) Defendant has failed to provide verified responses to Form Interrogatory 17.1, and (3) Defendant has not served Defendant’s original first response and verifications.

With regards to Form Interrogatory No. 15.1, which requests all facts, individuals, and documents that support Defendant’s denials or affirmative defenses, the court’s October 26, 2022 order required Defendant “to provide further verified responses to Form Interrogatory 15.1 without objection that contain substantive information as to Defendant’s general denial and affirmative defenses.” On November 9, Defendant served Plaintiff with supplemental responses. (Woodward Decl., ¶ 17.) Defendant’s supplemental responses did not include a response to Form Interrogatory 15.1 and Defendant claimed “No. 15.1 was not included because No 15.1 was not in Plaintiff’s Original Interrogatory Requests.” (Woodward Decl., Ex. 17, p. 5.)

This objection has no merit as Defendant previously responded to Form Interrogatory 15.1 per Defendant’s own reply paper submitted to the court on October 20, 2022. Furthermore, the court’s October 26 order also noted Defendant previously responded to Form Interrogatory No. 15.1 with a list of defenses and a general denial but failed to provide the required evidentiary support. As a result, the court ordered Defendant to provide responses that provide the evidentiary support requested in Form Interrogatory No. 15.1. Thus, the court takes Defendant’s responding objection as a refusal to comply with the court’s previous order.

With regards to Form Interrogatory No. 17.1, which requires a list of the facts, persons, and documents that support any answer to a request for admissions that is not an unqualified admission, the court’s October 26, 2022 order required Defendant to provide “code-compliant and verified responses to Plaintiff’s Form Interrogatory No. 17.1 . . . without objection within 14 days.” Plaintiff claims Defendant did not provide responses and instead required Plaintiff send the requested admissions to Defendant. (Woodward Decl., Ex. 17, p. 5.) However, because the court’s October 26 order deemed Plaintiff’s request for admissions admitted, the court finds Defendant is excused from complying with this discovery request as there are no responses that would qualify under Form Interrogatory No. 17.1.

Lastly, the court’s October 26, 2022 order ordered Defendant to comply with the court’s previous March 9, 2022 order “by providing the original of Defendant’s first responses to Plaintiff’s interrogatories and the original of the verification for the Defendant’s first responses.” Plaintiff has alleged that Defendant still has not served originals of either. (Woodward Decl., ¶ 18.) Thus, the court finds Defendant has refused to comply with the court’s two previous orders on this issue as well.

While Plaintiff previously requested issue or terminating sanctions in the October 26, 2022 motions to compel, the court found nonmonetary sanctions were not warranted as they are generally more appropriate after all other options for discovery are exhausted. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1097.) Nonetheless, the court concluded its order by noting “[i]f Defendant’s further responses remain unverified and continue to be devoid of substantive information, the court will entertain a renewed request for sanctions.”

"[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 v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) In determining of lesser sanctions would be ineffective, the court considers “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.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Courts may also consider prior warnings of sanctions (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1184) and whether the discovery violations are limited to a specific issue or the entire case. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)

Here, the court first ordered Defendant to provide further verified responses to Form Interrogatory No. 15.1 and originals of the first responses and verification on March 9, 2022. The court repeated the order to provide the originals in its May 26 order. While Defendant responded to Form Interrogatory No. 15.1 with a general denial and list of affirmative defenses, Defendant did not provide the required evidentiary support. In an October 20 filing, Defendant claimed the response to Form Interrogatory No. 15.1 was sufficient. However, on October 26, the court found the response was not sufficient and again ordered Defendant to file a code-compliant response, along with the original response and verification required by the court’s two previous orders.

Now, a few months shy of a year after the court first granted Plaintiff’s motion to compel, Defendant has still failed to provide the original response and verification. Also, instead of providing the required responses to Form Interrogatory No. 15.1, Defendant now claims the interrogatory was not included in the original discovery requests, despite previously having responded to that same interrogatory and asserting the response was compliant. In light of the continued noncompliance and changing reasons for failing to comply, the court finds Defendant’s noncompliance is willful.

The court also notes monetary sanctions were already imposed in the previous October 26 order. When the court denied Plaintiff’s request for nonmonetary sanctions in that same order, the court warned it would consider a renewed sanctions request if Defendant’s noncompliance continued. Lastly, the court notes Defendant’s continued refusal to provide any evidentiary support for the general denial and affirmative defenses asserted in this case deny Plaintiff the ability to prepare Plaintiff’s case and contest Defendant’s defenses. As the court noted in its previous October 26 order, this undermines the fundamental objective of pretrial discovery which is to allow a party to obtain all facts relative to a claim or defense. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.)  

Thus, where the court’s prior discovery orders and imposition of sanctions have proven ineffective at compelling Defendant to comply with Defendant’s discovery obligations, the court finds the imposition of terminating sanctions appropriate, especially where Defendant has repeatedly refused to provide supporting facts for affirmative defenses and a general denial. Accordingly, the court GRANTS Plaintiff’s motion for terminating sanctions and strikes Defendant’s general denial and affirmative defenses.

CONCLUSION

Based on the foregoing, Plaintiff’s motion for terminating sanctions is GRANTED and Defendant’s general denial and affirmative defenses is STRICKEN. As a result, default is entered against Defendant as of this date.