Judge: Serena R. Murillo, Case: 21STCV09943, Date: 2023-06-20 Tentative Ruling

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Case Number: 21STCV09943    Hearing Date: October 24, 2023    Dept: 31

TENTATIVE

Plaintiffs’ motion for terminating or issue sanctions is DENIED without prejudice.

Legal Standard

If a party fails to comply with a court order compelling a further response to a request for production, the court may impose monetary, issue, evidence, or terminating sanctions.  (Code Civ. Proc. § 2031.310, subd. (i).) CCP section 2023.030 provides that, "[t]o the extent authorized by the chapter governing any particular discovery method..., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose... [monetary, evidence, and terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process...." CCP section 2023.010 provides that "[m]issues of the discovery process include, but are not limited to, the following:... (d) Failing to respond or to submit to an authorized method of discovery.... (g) Disobeying a court order to provide discovery...."

"The trial court may order a terminating sanction for discovery abuse 'after considering the totality of the circumstances: [the] 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.'" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246).) "Generally, '[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.'" (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

"Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders." (Id. (citing Lang, supra, 77 Cal.App.4th at pp. 1244- 1246); see, e.g., Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal App 3d 481, 491 (disapproved on other grounds in Garcia v. McCucchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

Request for Judicial Notice

Plaintiffs’ request judicial notice of this Court’s: (1) February 21, 2023 Order granting Plaintiffs’ Motion to Compel London Towne Center, LLC to provide further responses to Plaintiff’s demand for production of documents 1, 2, 3, 5, 6, 7, 8, 9, 17, 29 and 34; (2) March 3, 2023 Order granting Plaintiffs’ Motion to Compel  Defendant Norris to provide further responses to Plaintiff’s demand for production of documents 1, 2, 4, 5, 6, 7, 25, 26 and 33; (3) April 25, 2023 Order granting Plaintiffs’ two motions to compel discovery responses as to Defendant Thomas Norris, including a motion to provide responses to Plaintiffs’ Supplemental Interrogatory, by updating its prior interrogatory responses and a motion to provide responses Plaintiffs’ Supplemental Demand for Production of Documents; (4) June 9, 2023 Order granting Plaintiffs’ motion to compel Defendant London Towne Center, LLC to provide responses to Plaintiffs’ Supplemental Demand for Production of Documents; (5) June 20, 2023 Order granting Plaintiffs’ motion to compel Defendant London Towne Center, LLC to provide responses to Plaintiffs’ Supplemental Demand for Production of Documents; (6) July 28, 2023 Order.

The request is GRANTED under Evidence Code section 452(d).

Discussion

Plaintiffs moves for terminating sanctions or in the alternative, issue sanctions, against Defendants on the ground that Defendants failed to comply with six Court orders to respond to discovery and pay monetary sanctions.

On February 21, 2023, this Court granted Plaintiffs’ motion to compel London Towne Center to provide further responses to requests for production (set one) and request for sanctions in the amount of $1,840.65 against London Towne. The requests for production were for accounting of Defendants’ finances. (2/21/2023 Minute Order.) Defendant Norris was present at the hearing. (Id.) Plaintiffs gave notice of the Court ruling the next day. (2/22/23 Notice of Ruling.)

On March 3, 2023, this Court granted Plaintiffs’ motion to compel Defendant Norris to provide further responses to request for production of documents (set one), and request for sanctions in the amount of $1,840.65 against Norris. The Court stated responses were due within 30 days. (3/3/23 Minute Order.) Plaintiff gave notice of the Court ruling on March 6, 2023. (3/6/23 Notice of Ruling.)

On April 25, 2023, this Court granted Plaintiffs’ motions to compel Defendant Norris’ responses to supplemental request for interrogatories (set one), and supplemental request for production of documents (set one), and request for sanctions in the amount of $1,141.85 against Norris. The Court stated that responses were due within 15 days. (4/25/23 Minute Order.) Plaintiffs gave notice of the ruling the same day. (4/25/23 Notice of Ruling.)

On June 9, 2023, this Court granted Plaintiffs’ motion to compel Defendant London Towne to respond to supplemental interrogatories (set one), and request for sanctions against London Towne in the amount of $1,158.15. The Court ordered responses to be provided by June 22, 2023. (6/9/23 Minute Order.) Plaintiffs gave notice of the ruling on June 12, 2023. (6/12/23 Notice of Ruling.)

On June 20, 2023, this Court Plaintiffs’ motion to compel Defendant London Towne Center, LLC to respond to supplemental requests for production of documents (set one), and request for sanctions in the amount of $1,155.15. Responses were due in 10 days. (6/20/23 Minute Order.) Plaintiffs gave notice on June 21, 2023. (6/21/23 Notice of Ruling.

On July 3, 2023, this Court ordered Defendant Norris to comply with the discovery orders from February 21, 2023, March 3, 2023, April 25, 2023, June 9, 2023, and June 20, 2023 by July 10, 2023. The Court also ordered Defendant Norris to appear for deposition on July 21, 2023. (7/3/23 Minute Order.)

On July 21, 2023, Norris did appear for deposition but failed to produce any of the documents. At this deposition Norris readily confessed that he failed to comply with the Court’s July 3, 2023 orders even by the time of the deposition – which meant that he failed to comply with the five orders that were the subject of the July 3, 2023 Order – and that he had no excuse for his failure and refusal to comply. (Cohon Decl., ¶ 23.)

Despite this Court’s orders from February 21, 2023, March 3, 2023, April 25, 2023, June 3, 2023 and June 20, 2023 ordering Defendant to comply with the discovery, and the July 3, 2023 order directing Defendant to comply with the Court’s orders, Defendants have failed to respond to the discovery at issue. (Cohon Decl., ¶ 24.)

The Court notes that whether Defendant complied with the Court’s order to pay monetary sanctions is not relevant to the determination of whether terminating sanctions¿should be imposed.  A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿(Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, CCP §§680.010, et seq.  (Id. at 615.)    

The Court notes that Defendant London Towne’s answer was stricken and default was entered against it on June 22, 2023. Thus, the motion is moot as to London Towne.

As such, this motion pertains to Defendant Norris, and therefore, two Court orders are at issue; the March 3, 2023 order and the April 25, 2023 order. Plaintiff states that Defendant complied in part with the March 3, 2023 order. (Suppl. Cohon Decl., ¶ 5.) However, Defendant has not provided supplemental responses to the discovery ordered on April 25, 2023. (Id.) Nevertheless, the Court will note that Defendant did appear for deposition on July 21, 2023, when the Court warned that sanctions may be imposed if he failed to appear. (7/3/23 Minute Order.) In addition, the Court notes that Defendant has been appearing for hearings. Moreover, when the hearing on this motion was continued to allow Defendant to comply with the Court orders, Defendant did still make an attempt to comply and did comply in part, granted his compliance was not perfect.

The imposition of terminating sanctions is a drastic measure. (See¿Deyo¿v. Kilbourne¿(1978) 84 Cal.App.3d 771, 793 (“The sanction of dismissal or the rendition of a default judgment against the disobedient party is ordinarily a drastic measure which should be employed with caution. [Citation] However, there is no question that a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations. [Citation] The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit. [Citations]”).) When determining if a terminating sanction is appropriate, trial courts consider the totality of the circumstances: 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 [“Lang”].)

The Court cannot find that Defendant Norris is outright refusing to comply with his discovery obligations. Moreover, as terminating sanctions is a drastic remedy, and Defendant Norris is attempting to comply, the Court must employ caution in granting it. Therefore, the Court exercises its discretion in denying the motion at this time.

Conclusion

Based on the foregoing, Plaintiffs’ motion for terminating or issue sanctions is DENIED without prejudice.

Moving party is ordered to give notice.