Judge: Salvatore Sirna, Case: 21STCV32828, Date: 2025-02-26 Tentative Ruling

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Case Number: 21STCV32828    Hearing Date: February 26, 2025    Dept: G

Plaintiffs Mikael Kolling and Daniel Kolling’s Motion for Terminating Sanctions against Defendant Sevadham Management, LP and Defendant’s Counsel of Record

Respondent: Defendant Sevadham Management, LP

TENTATIVE RULING

Plaintiffs Mikael Kolling and Daniel Kolling’s Motion for Terminating Sanctions against Defendant Sevadham Management, LP and Defendant’s Counsel of Record is DENIED WITHOUT PREJUDICE.

BACKGROUND

This is an action for elder abuse. On September 2, 2021, Plaintiffs Mikael Kolling, by and through Daniel Kolling as personal representative and successor in interest, and Daniel Kolling  filed a complaint against Defendants Sevadham Management, LP (Sevadham), Does 1-25, and Jesse Kolling (as a nominal defendant), alleging the following causes of action: (1) dependent adult abuse and neglect, (2) violation of patient rights, (3) negligence, and (4) wrongful death.

On December 4, 2024, Plaintiffs filed the present motion. A hearing on the present motion is set for February 26, 2025, along with a CMC/Status Conference Re: ADR.

ANALYSIS

Plaintiffs move for terminating sanctions against Defendant Sevadham for their alleged failure to comply with discovery obligations. For the following reasons, the court DENIES Plaintiffs’ motion.

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

On November 28, 2022, Plaintiffs served discovery requests on Sevadham that included special interrogatories, form interrogatories, and requests for production of documents. (Oghassabian Decl., ¶ 4.) After Sevadham failed to respond, Plaintiffs’ counsel sent a meet-and-confer letter to Sevadham’s counsel on February 10, 2023. (Oghassabian Decl., ¶ 5-6, Ex. A.) On the same day, Sevadham’s counsel spoke with Plaintiffs’ counsel over the telephone and agreed to provide responses by March 13, 2023. (Oghassabian Decl., ¶ 7.) After Sevadham failed to provide responses by the new March 13 deadline, Plaintiffs’ counsel sent another meet-and-confer letter to Sevadham’s counsel on April 18, 2023, that requested discovery responses by May 1, 2023. (Oghassabian Decl., ¶ 8-9, Ex B.) Plaintiffs’ counsel also sent emails to Sevadham’s counsel requesting a response on April 25, 2023, and April 28, 2023. (Oghassabian Decl., ¶ 10, Ex. C.) On November 29, 2023, Plaintiffs filed a motion to compel responses to their discovery requests. (Oghassabian Decl., ¶ 12.) Plaintiffs withdrew their motion on May 6, 2024, after the court issued a tentative to deny the motion. (Oghassabian Decl., ¶ 18-19.)

On May 24, 2024, Plaintiffs served additional discovery requests on Sevadham that included requests for admissions and a second set of form interrogatories. (Oghassabian Decl., ¶ 23.) On the same day, Plaintiffs also re-filed their previous motion to compel. Sevadham did not respond to Plaintiffs’ second set of discovery requests. (Oghassabian Decl., ¶ 24.) After this matter was transferred to the present department on July 2, 2024, the court took the motion to compel off calendar. (Oghassabian Decl., ¶ 26.) On September 25, 2024, the court held an informal discovery conference (IDC) and ordered Sevadham to provide verified responses to Plaintiffs’ first and second set of discovery requests by October 9, 2024. (Oghassabian Decl., ¶ 33, Ex. P.) Sevadham did not provide any responses by the October 9 deadline and has yet to do so. (Oghassabian Decl., ¶ 39-41.)

Plaintiffs argue Sevadham’s failure to comply with the court’s September 25 order provides grounds for terminating sanctions. (Motion, p. 8:3-10:3.) But while the court’s September 25 ruling is phrased as an order, it is in effect an IDC recommendation as no formal motion to compel was before the court. The ruling also specifically directs Plaintiffs to file the appropriate discovery motion if no response is received. Plaintiffs have not done so and without a prior order compelling Sevadham to provide discovery responses, there is no pattern of noncompliance with discovery orders for the court to sanction.

Accordingly, the court DENIES Plaintiffs’ motion without prejudice.

CONCLUSION

Based on the foregoing, Plaintiffs’ motion for terminating sanctions is DENIED WITHOUT PREJUDICE.