Judge: Salvatore Sirna, Case: 21PSCV00313, Date: 2023-02-22 Tentative Ruling

Case Number: 21PSCV00313    Hearing Date: February 22, 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 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. At a hearing on January 24, 2023, the court continued the motion and ordered Defendant to provide supplemental responses by February 8.   

A hearing on the motion is set for February 22, 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 requested issue and terminating sanctions against Defendant on the grounds that Defendant has refused to comply with this court’s previous discovery orders. Based on Plaintiff’s arguments, the court imposes terminating sanctions.

Legal Standard

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.) 

Discussion

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.

As an initial matter, the court notes Plaintiff’s second and third issues have been resolved. With regards to Defendant’s failure to provide responses to Form Interrogatory 17.1, the court finds Defendant’s noncompliance is excused as the court’s October 26, 2022 ruling deemed Plaintiff’s requests for admission admitted as to Defendant. With respect to Plaintiff’s third issue, the court notes that parties agreed to orally stipulate that Defendant has submitted an original first responses and verification as previous ordered. (1/24/2023 Minute Order.)  Thus, the court now addresses the issues with Form Interrogatory 15.1.

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, ruling ordered 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.

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, 2022, 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 insufficient 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. Nonetheless, at the conclusion of the January 24, 2023, hearing where the court had tentatively granted terminating sanctions, the court continued the hearing on Plaintiff’s motion and gave Defendant yet another opportunity to comply.

At the January 24, 2023 hearing, the court advised Defendant that Defendant had to list each denial and affirmative defense along with all of the subparts to Form Interrogatory 15.1. The court provided Defendant painstaking detail on the form required for each response to Form Interrogatory 15.1.  At the hearing on January 24, 2023, Defendant indicated to the court Defendant understood what was required to comply with the court’s previous discovery orders, including the October 26, 2022, order.

Defendant subsequently served a response to Form Interrogatory 15.1, but failed to provide a complete, code-compliant response.  First, Defendant’s response does not provide an answer to Form Interrogatory 15.1 with regards to Defendant’s general denial and twenty-first affirmative defense. (Suppl. Reply, Ex. 1; Defendant’s 2/9/2023 Motion to Vacate (DMV).) Also, it appears that Defendant has multiple versions of his supplemental response to Form Interrogatory 15.1, one which Defendant submitted to the court and a different version Defendant submitted to Plaintiff.  While Defendant’s February 9, 2023, filing to the court includes answers to all three subparts of Form Interrogatory 15.1 with respect to Defendant’s first affirmative defense (DMV, p. 2:23-4:14), Defendant’s submission to Plaintiff omits a response to part (c). (Suppl. Reply, Ex. 1., p. 4:12-14.) Third, while Defendant provides what can liberally be interpreted as facts supporting the rest of Defendant’s affirmative defenses in response to subpart (a) of Form Interrogatory 15.1, Defendant fails to provide any response to subparts (b) and (c) of Form Interrogatory 15.1. Thus, even though Defendant provided facts supporting most of Defendant’s defenses, the court finds those facts are meaningless to Plaintiff without any supporting witnesses (subpart (b)) or documents (subpart (c)).

“[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 finds that Defendant’s continual refusal to provide complete discovery responses demonstrates a willful disregard of California’s discovery laws and this court’s prior rulings. Defendant’s continued refusal to provide evidentiary support for the general denial and affirmative defenses asserted in this case deny Plaintiff the ability to prepare Plaintiff’s case and to 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 and required, especially where Defendant has repeatedly refused to provide supporting evidence 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 are STRICKEN. As a result, default is entered against Defendant as of this date.