Judge Serena R. Murillo, Case 21STCV27810 2023-02-10 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV27810, Date: 2023-02-10 Tentative Ruling

Case Number: 21STCV27810 Hearing Date: February 10, 2023 Dept: 29

TENTATIVE

Plaintiff’s motion for terminating sanctions is CONTINUED one final time. Both parties are ordered to submit supplemental briefing regarding the status of discovery at least five court days before the next hearing.

Legal Standard

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).)

Discussion

Plaintiff moves for terminating sanctions against Defendant on the ground that Defendant failed to comply with the Court's September 8, 2022 order to respond to discovery.

On September 8, 2022, this Court granted Plaintiff’s motions to compel Defendant’s responses to form interrogatories, special interrogatories, request for production of documents and to deem matters in request for admissions admitted. (9/8/2022 Minute Order.) The Court ordered Defendant to provide verified responses without objections to the discovery within 30 days. (Id.) The additionally ordered Defendant and counsel of record to pay monetary sanctions in the amount of $1,092, jointly and severally, within 30 days. (Id.) Defendant has not responded to the discovery. Defendant did not pay the sanctions until November 7, 2022. (Id., ¶ 7.)

This motion was heard on December 14, 2022. The Court found that it does not appear that Defendant has completely abandoned the case. First, on October 5, 2022, Defendant filed an ex parte application to continue trial. (Evid. Code, § 452, subd. (d) [providing that a court may take judicial notice of records of any court of this state].) In the ex parte application, defense counsel explained that due to the unavailability of the prior handling trial attorney, this case was reassigned to him, and he needs additional time to prepare for trial, including “requesting updates to discovery responses ....” (Ex Parte Application, Declaration of Jeffry Caballero (“Caballero Decl.”), ¶ 3.) Counsel also informed the Court that his law firm has unexpectedly lost several attorneys in the preceding two months prior to the filing of the ex parte application. (Caballero Decl., ¶ 5.) On October 7, 2022, the Court granted the unopposed ex parte application and continued trial from January 26, 2023, to its current date, May 5, 2023. (Ex Parte Application, p. 1; October 7 Minute Order, p. 1.)

The Court also took judicial notice of the fact that there is a hearing on motion for leave to intervene on the Court’s calendar January 10, 2023. The Court, therefore, continued this hearing on the motion for terminating sanctions and stated that if Defendants fail to defend the action or submit discovery responses by the next court date as ordered, the Court will consider granting the Plaintiff’s motion for terminating sanctions at that time. Both parties were ordered to submit supplemental briefing regarding the status of discovery at least ten court days before the next hearing.

Now, Plaintiff has filed a supplemental brief, stating that Defendant has still not responded to the discovery at issue in this motion. Defendant has not filed any supplemental briefing.

Although Defendant has yet to respond to the discovery at issue, the Court notes that the hearing on the motion for leave to intervene was continued to March 2, 2023, to allow Loya Casualty Insurance Company (“Proposed Intervenor”) to file its proposed answer. (1/10/23 Minute Order.) The Court noted that it was inclined to grant the motion and allow Proposed Intervenor to intervene to defend Defendant. (Id.) Proposed Intervenor’s position is that it cannot contact or locate Defendant. It follows that Proposed Intervenor cannot respond to the discovery without Defendant’s verifications. As such, the Court will continue one final time to a date after the motion to intervene is heard, to allow Proposed Intervenor additional time to respond to the discovery at issue after it has appeared in this matter. However, this will be the final continuance on this motion for terminating sanctions. If Proposed Intervenor does not respond to the discovery at issue here by the time this motion is heard on the next hearing date, the Court is very inclined to grant terminating sanctions rendering Defendant in default. Again, both parties are ordered to submit supplemental briefing regarding the status of discovery at least five court days before the next hearing.

Conclusion

Accordingly, Plaintiff’s motion for terminating sanctions is CONTINUED one final time. Both parties are ordered to submit supplemental briefing regarding the status of discovery at least five court days before the next hearing.

Plaintiff is ordered to give notice.