Judge: Stephanie M. Bowick, Case: 23STCV11125, Date: 2025-02-27 Tentative Ruling

Case Number: 23STCV11125    Hearing Date: February 27, 2025    Dept: 19

TENTATIVE RULING

After full consideration of the papers filed, Plaintiff Jina Lazar’s Motion For Terminating Sanctions, Or In The Alternative, To Compel Defendants’ Compliance With The Court’s September 26, 2024 Order And For Sanctions is GRANTED in part and DENIED in part as follows:

The Court DENIES the motion for terminating sanctions but GRANTS the alternative request for evidentiary sanctions in the reduced amount of $10,400.00 against Defendants and Defendants’ counsel of record, Jack Sapien, jointly and severally, payable to Plaintiff through her attorney of record within 30 days.

Counsel for Plaintiff to give notice.

STATEMENT OF THE CASE

This is an employment dispute action. Plaintiff Jina Lazar (“Plaintiff”) brings suit against Defendants Coast to Coast Water Damage & Restoration, Inc. and Thoren Quintanilla (collectively, “Defendants”) alleging the following causes of action:

1.     Medical Condition Harassment in Violation of Cal. Gov. § 12940(j)(1);

2.     Medical Condition Discrimination in Violation of Cal. Gov. § 12940(a);

3.     Sexual Harassment in Violation of Cal. Gov. § 12940(j);

4.     Gender Discrimination in Violation of Cal. Gov. § 12940(a);

5.     Wrongful Termination in Violation of Public Policy;

6.     Failure to Engage in the Interactive Process in Violation of Cal. Gov. § 12940 et seq.;

7.     Failure to Make Reasonable Accommodations in Violation of Cal. Gov. § 12940 et seq.;

8.     Negligent Supervision, Hiring, & Retention;

9.     Failure to Take All Reasonable Steps to Prevent Harassment, Discrimination, and Retaliation in Violation of Cal. Gov. § 12940(j)(1) and (k);

10.  Retaliation;

11.  Intentional Infliction of Emotional Distress;

12.  Failure To Timely Pay Wages Upon Discharge And Waiting Time Penalties (Labor Code §§ 201-204 and 256); and

13.  Violation of Cal. Labor Code § 1198.5 – Failure to Permit Inspection of Personnel Records.

1.     Declaratory And Injunctive Relief/Constructive Trust.

Plaintiff filed the instant Motion For Terminating Sanctions, Or In The Alternative, To Compel Defendants’ Compliance With The Court’s September 26, 2024 Order And For Sanctions (the “Motion”).

GROUNDS FOR MOTION

Pursuant to Code of Civil Procedure sections 2030.290(c), 2031.300(c), and 2031.320(c), Plaintiff moves for terminating sanctions or, in the alternative, an order compelling Defendants to comply with the Court’s September 26, 2024 Order and for $13,600.00 in additional monetary sanctions against Defendants and Defendants’ counsel, jointly and severally, on the ground that Defendants have failed to comply with the Court’s July 30, 2024 and September 26, 2024 Orders.

DISCUSSION

I.                Legal Standard

A court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose sanctions of the type enumerated in Code of Civil Procedure section 2023.030, including monetary or terminating sanctions, “against anyone engaging in conduct that is a misuse of the discovery process….” (Code Civ. Proc., § 2023.030.) Code of Civil Procedure section 2023.010 defines a misuse of the discovery process as both “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010(d), (g).)  

With respect to terminating sanctions for misuse of the discovery process, Code of Civil Procedure section 2023.030, subdivision (d) provides that:

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030(d).)

“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,¿Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280)); see Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246 [holding terminating sanction permissible for misuse of the discovery process after considering the totality of the circumstances, e.g., the willfulness of the conduct of the party, the detriment to the propounding party, and the number of formal and informal attempts to obtain the discovery].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”¿ (Los¿Defensores, supra, 223 Cal.App.4th at 390 (citing¿Lang,¿supra,¿77 Cal.App.4th at 1244-1246 [discussing cases]);¿see, e.g.,¿Collisson¿& 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. McCutchen¿(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].)¿

With respect to monetary sanctions for misuse of the discovery process, Code of Civil Procedure section 2023.030, subdivision (a) provides, in part, that:

The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct…. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(Code Civ. Proc., § 2023.030(d).)

II.             Analysis

Plaintiff contends that sanctions are warranted due to Defendants’ failure to pay monetary sanctions as ordered by the Court pursuant to the Court’s July 30, 2024 Order and Defendants’ failure to comply with the Court’s September 26, 2024 Order ordering Defendants to provide, within thirty (30) days, verified responses, without objections to Plaintiff’s Form Interrogatories (General) And (Employment Law), Special Interrogatories, And Request For Production.

In Opposition, Defendants contend that they “¿served verified, substantive response to all outstanding discovery on February 12, 2025 without objection.” (Opposition, p. 3.)

However, per the Notice of Ruling filed by Plaintiff on September 30, 2024, Plaintiff served notice of the Court’s September 26, 2024 Order electronically on Defendants on September 30, 2024, and therefore Defendants’ responses were due October 30, 2024.

By serving them on February 12, 2025, almost three (3) months after the instant Motion was filed and one day before their opposition was due, Defendants concede that they failed to comply with the Court’s September 26, 2024 Order.

Given Defendants’ proof of service of the responses, (Jack Sapien Decl., ¶¶ 4-5, Exs. A-B), the Court finds that terminating sanctions are not appropriate under the circumstances.

However, the Court finds that additional monetary sanctions are warranted. The Court finds that Defendants’ failure to provide the responses in the time ordered by the Court necessitated the filing of the instant Motion, and that Plaintiff should not be forced to incur the costs to file the instant Motion. While Plaintiff contends that the responses are insufficient, this issue will need to be litigated by way of a motion to compel further and cannot be addressed by way of the instant Motion.

Further, Defendants do not contend that they have complied with the Court’s July 30, 2024 Order that $2,500.00 in monetary sanction be paid to Plaintiff through her attorney of record within 30 days.

Accordingly, for the foregoing reasons, while the Court DENIES Plaintiff’s request for terminating sanctions, the Court GRANTS Plaintiff’s alternative request for monetary sanctions.

After consideration of the declaration of Sam Yerbi, (see Sam Yerbi Decl., ¶¶ 17-20), the Court finds counsel’s requested hourly rate of $850.00 excessive and lacking sufficient evidentiary support. (See Code Civ. Proc., § 2023.040 [“The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”].)

Rather, relying on its own knowledge and familiarity with the legal market, (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437), the Court finds $650.00 per hour to be reasonable.

Defendants do not challenge the sixteen (16) hours requested. (See Yerbi Decl. at ¶ 20.)

Accordingly, the Court imposes additional monetary sanctions against Defendants in the reduced amount of $10,400.00.

The Court also orders that that Defendants’ counsel be jointly and severally liable for the sanctions award and rejects Defendants’ argument that sanctions should not be imposed jointly and severally upon Defendants’ counsel. (Opposition at p. 6.)

Plaintiff provides evidence that Defendants’ counsel, Mr. Jack Sapien, failed to respond to meet and confer correspondence, (Yerbi Decl. at ¶¶ 15-16, Ex. F), and Code of Civil Procedure section 2023.030, subdivision (a) provides that:

The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.

(Code Civ. Proc., § 2023.030(a).)

While Mr. Sapien attests that “¿as Defendants were preparing substantive responses in early 2025, both Defendants and Defense Counsel were impacted by the fires in Los Angeles,” (Sapien Decl. at ¶ 5(b)), as discussed above, the responses were due back in October 2024, and the instant Motion was filed on November 19, 2024, months before the fires.

Thus, the Court finds Defendants’ argument that sanctions should not be imposed jointly and severally upon Defendants’ counsel unpersuasive.