Judge: Sandy N. Leal, Case: 2018-00975904, Date: 2023-08-24 Tentative Ruling

Motion for Terminating Sanctions

The Motion of Cross-Complainant and Cross-Defendant Linda Votow, individually, and in her capacity as Trustee of the Linda Davis Family Income Trust Dated 01/01/1997 (collectively “Votow”) for monetary, issue and/or terminating sanctions against Plaintiff, Cross-Defendant and Cross-Complainants Southern California Addiction Center (“SCAC”) and Aaron Brower (“Brower”) is GRANTED in part and DENIED without prejudice in part.  The alternative Motion granting all Votow’s pending Motions to Compel Further Responses to Discovery, together with all monetary sanctions requested therein is DENIED.

Request for Terminating Sanctions:

“[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ‘Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” ’ [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. ‘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.’ [Citation.]” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes) (Footnote 5 omitted.) Before issuing terminating sanctions, the court should usually grant lesser sanctions such as orders staying the action until the derelict party complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party.  Deyo v. Kilbourne, 84 Cal. App. 3d 771, 796 (1978).

Votaw has shown that SCAC and Brower have failed to comply with this Court’s “Order Appointing Discovery Referee Per CCP 639” dated February 17, 2023 (“February 17, 2023 Order”). (McGuire Decl., ¶ 15, Ex. 2.) Specifically, the Discovery Referee requested a 30-hour retainer to hear and decide the 8 Motions to Compel Further Responses. (McGuire Decl., ¶ 16, Ex. 3.) Votaw paid in full their portion of the initial compensation, but SCAC and Brower failed to make any deposit for the initial compensation for the Discovery Referee. (McGuire Decl., ¶ 16-17, Exs. 4-5.) The Discovery Referee took off-calendar the previously scheduled hearing date of May 31, 2023 for the 8 Motions to Compel, and has refused to reschedule the hearing date unless or until SCAC and Brower pay their portion of the initial compensation. (McGuire Decl., ¶ 18.)

Although Votaw has shown a violation of the February 17, 2023 Order, there has been no incremental approach to sanctions and lesser sanctions of issue, evidentiary, and/or monetary sanctions are appropriate at this time. Therefore, the request for terminating sanction is DENIED without prejudice.

Request for Issue Sanctions:

Pursuant to California Rules of Court, Rule 3.1345(a)(7), a separate statement is required for a motion for issue sanctions.

Votaw has not filed a separate statement in support of its request for issue sanctions and therefore failed to comply with Rule 3.1345(a)(7). Accordingly, Votaw’s request for issue sanctions is DENIED without prejudice.

Request for Monetary Sanctions:

Votaw’s request for monetary sanctions is GRANTED in the reduced amount of $6,050. SCAC and Brower are ORDERED to pay $6,050 in monetary sanctions to Votaw within 20-days’ notice of this ruling.

Alternative motion granting all Votow’s pending Motions to Compel:

The alternative motion granting all the pending Motions to Compel should be DENIED. However, the Court ORDERS SCAC and Brower to comply with the Court’s February 17, 2023 Order within 20-days’ notice of this ruling.

The Court warns SCAC and Brower that failure to comply will result in more severe sanctions, which may include terminating sanctions.

Votaw to give notice.