Judge: Shirley K. Watkins, Case: 19STCV03910, Date: 2022-10-04 Tentative Ruling
If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.
Case Number: 19STCV03910 Hearing Date: October 4, 2022 Dept: T
[TENTATIVE] ORDER: Plaintiff Jane Doe’s Motion for Terminating Sanctions and alternative Motion for Issue Sanctions is DENIED.
Plaintiff Jane Doe (Plaintiff) moved for terminating sanctions against Defendant Equinox Holdings, Inc. (Defendant.) Alternatively, Plaintiff moved for issue sanctions against Defendant.
Procedure
As to Plaintiff’s alternative request for issue sanctions, a motion for issue or evidentiary sanctions must be accompanied by a separate document setting forth the particular discovery requests at issue, the responses thereto, and the reasons why such sanctions should be imposed. (Cal. Rules of Court, rule 3.1345(a)(7).) Plaintiff’s alternative request for issue sanctions failed to include a separate statement. Because of Plaintiff’s failure to submit a separate statement, there is grounds to deny the alternative request for issue sanctions.
Discussion
Plaintiff requested terminating sanctions because Defendant’s production allegedly violated the Court’s May 10, 2021 Discovery Order (Order) (Reagan Decl. par. 9, Exh. 8.) “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.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701-702.) “The discovery statutes thus 'evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Lopez v Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure (internal citations omitted), a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective (Internal citations omitted.)” (Ibid.) The Order, in relevant part, required Defendant to provide a Code compliant response and production to Plaintiff’s Request for Production of Documents (RPD) no. 18 in 45 days or by June 24, 2021. RPD no. 18 requested documents showing other instances of claimed sexual misconduct. The Order limited the scope of the RPD to complaints/events occurring in the spa. The Order also issued monetary sanctions. No other sanctions were issued by the Court at the May 10, 2021 hearing or previously. The next incremental sanction would be issue or evidence sanctions. However, Plaintiff’s request skips to the ultimate doomsday sanction. Because issue or evidence sanctions have not been implemented, terminating sanctions are not warranted. Further, Plaintiff’s evidence does not present sufficient facts to show that exceptional circumstances exist to support the request for terminating sanctions. For this defect in the request, there is grounds to deny the request for terminating sanctions.
Defendant attempted, albeit an initial minimal attempt, to timely comply with the Court order by producing an unverified two-page summary showing nine complaints of sexual assault in spas. (Reagan Decl. par. 10, Exh. 9. The prior complaints of sexual assault in spas were identified as Jane Does 1-6 and John Does 1-3.) Defendant then produced documents on: January 21, 2022 (26 pages; Reagan Decl. pars. 18-19, Exh. 17); February 7, 2022 (allegedly the same 26 pages from the January 21, 2022 production; Reagan Decl. pars. 20-21, Exh. 19); and August 15, 2022 (52 pages; Reagan Decl. pars. 28, Exh. 27.) Defendant’s production of documents was in violation of the Order because the production was untimely.
Plaintiff’s arguments as to the veracity of the production or the substance of the production, or lack of substance, are not considered. Plaintiff fails to cite any legal authority to show that the veracity or substance of the production is a factor in determining terminating sanctions.
Plaintiff also asserts that the verifications for the February 7, 2022 and August 15, 2022 productions were improper. An unverified discovery response is treated as no response. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636-37.) If the responses are not properly verified, then no response was made, which would show a violation of the Order. The verifications were signed by Nathan Cook, Regional Director for Equinox, and Jeanette St. Jacques, Senior Director of Employee Relations for Equinox. Plaintiff argues that Mr. Cook did not have personal knowledge as to some of the documents produced or lack thereof. However, in reality, the persons designated to verify Defendant’s responses, a corporation, may not have personal knowledge of all facts stated in the production. Because of this reality, verifications based upon “information and belief” are reasonable in verifying a corporation’s production. The verifications attached to the production are proper. Defendant’s productions are proper responses.
Plaintiff asserts that Mr. Cook’s subsequent deposition testimony revealed that he had no knowledge as to the production. However, contrary evidence to dispute a verification is an issue of fact that is better raised as an issue to the trier of fact. Again, disputes as to the veracity of the production are not factors in determining terminating sanctions.
The parties argue over whether the alleged violation was willful. Under Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327, the Court opined that a prerequisite for nonmonetary sanctions is a willful violation of the court order. However, “willfulness is no longer a requirement for the imposition of discovery sanctions.” (Code Civ. Proc. sec. 2023.030; Reedy v. Bussell (2007) 148 Cal. App.4th 1272, 1291.) Even if willfulness is seen as a prerequisite, the Court finds that Defendant’s production, albeit untimely production, was not a willful violation of the Court’s Order because Defendant ultimately produced the documents.
Plaintiff’s request for terminating sanctions is DENIED.
As to Plaintiff’s request for issue sanctions, the Court considers the merits of the arguments despite Plaintiff’s failure to submit a separate statement. Issue sanctions can be warranted if Defendant failed to comply with the Court’s Order. As of Defendant’s August 15, 2022 production, documents related to sexual assault complaints by Jane Does 1-5 and John Doe 1-3 have been produced. Jane Doe 6 is Plaintiff and document production of Plaintiff’s complaint is not at issue. For the Jane and John Does identified in Defendant’s Summary, production appears to be complete. Plaintiff, however, disputes the veracity of Defendant’s claim that production is complete. Plaintiff asserts that other complaints exist and documents were not produced as to those complaints (i.e., sexual harassment complaint by Katie Waissel, an employee, a 2017 complaint at Defendant’s Westwood location, and two complaints referenced in Jane Doe 5’s complaint.) However, the Court notes that Defendant’s August 15, 2022 “Second Supplemental Responses” does not state that all responsive documents have been produced. (Regan Decl. Exh. 27.) Defendant’s “Second Supplemental Response” also does not state that no other responsive documents exist. In fact, the “Second Supplemental Response” expressly states that investigation and discovery are continuing and further investigation may reveal additional documents. ((Reagan Decl. Exh. 27, par. 16.) Because Plaintiff’s arguments are grounded on facts not found in a verified discovery response, the request for issue sanctions is not persuasive. Although Plaintiff may have facts showing the existence of other complaints outside of the nine listed in Defendant’s Summary, there is insufficient showing that Defendant violated the Court’s Order.
Plaintiff’s request for issue sanctions is DENIED.
IT IS SO ORDERED, ____________________ TO GIVE NOTICE.