Judge: Sandy N. Leal, Case: 2022-01239360, Date: 2023-08-03 Tentative Ruling

Motion for Terminating Sanctions

Plaintiff Desert Sun Products, LLC’s motion for terminating sanctions, striking Defendants Diya Holdings, LLC and Jairaj Samtani’s answers and rendering judgment by default against Defendants is DENIED without prejudice.

“[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 (1978) 84 Cal.App.3d 771, 796.)

Plaintiff has shown that Defendants have violated the Court’s prior order dated December 8, 2022. (Ernie Decl., ¶ 5, Ex. B; ROA No. 55.) Specifically, on December 8, 2022, the Court ordered both Defendants to provide responses to Plaintiff’s Request for Production of Documents, Set One, without objections, within 30 days of the date of service of the notice of the Order. The Court also ordered each Defendant to pay sanctions in the amount of $487.50. (Id.) Defendants have failed to comply with the Court’s December 8, 2022, Order. (Ernie Decl., ¶ 6.)

The moving party must not only show that there was violation of the court’s order, but that such violation was willful. (Doppes, supra, 174 Cal.App.4th at 992.) Plaintiff contends that Defendants failure to comply with the Court’s December 8, 2022 Order was willful “as they were given notice of the court’s order.” (Motion., p. 5, lns. 14-15.) Plaintiff has not submitted any authority to show that failure to comply with an order despite notice is sufficient for a finding of willfulness.

Further, there has been no incremental approach to sanctions and lesser sanctions of issue, evidentiary, and/or monetary sanctions would have been appropriate. However, Plaintiff has not requested such relief.

Accordingly, Plaintiff’s request for terminating sanctions is DENIED without prejudice.

Defendants are ordered to comply with the Court’s December 8, 2022 Order within 20 days of the notice of this ruling. The Court warns Defendants that failure to comply will result in more severe sanctions, which may include terminating sanctions.

Plaintiff to give notice.