Judge: Stephen P. Pfahler, Case: 20CHCV00560, Date: 2022-07-29 Tentative Ruling

Case Number: 20CHCV00560    Hearing Date: July 29, 2022    Dept: F49

Dept. F-49

Date: 7-29-22 c/f 7-12-22

Case # 20CHCV00560

Trial Date: 1-30-23 c/f 6-13-22

SANCTIONS

MOVING PARTY: Plaintiff, California Department of Public Health and Bureau of Cannabis Control

RESPONDING PARTY: Unopposed/Defendant, Kushy Punch, Inc.

RELIEF REQUESTED

Motion for Issue and Evidentiary, and Additional Monetary Sanctions

SUMMARY OF ACTION

On September 23, 2020, the California Department of Public Health and Bureau of Cannabis Control filed a complaint for civil penalties. Plaintiff alleges Defendants engaged in unlicensed commercial cannabis activities in the cities of Gardena and Canoga Park. On March 1, 2021, Defendants answered the complaint.

RULING: Granted

Plaintiff California Department of Public Health and Bureau of Cannabis Control moves for the imposition of issue and evidentiary, plus additional monetary sanctions against defendant Kushy Punch, Inc., due to the failure of defendant to comply with the March 16, 2022 order compelling further responses to request for production of documents, request for admissions, and form interrogatories. Plaintiff also moves to deem request for admissions admitted.

The court considers the motion for evidentiary and issue sanctions. “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.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.)

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1428.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)

The underlying motion to compel was unopposed, and the subject motion remains unopposed. Defendant has apparently abandoned the action and/or demonstrates no intent to comply with the court order. The motion for evidentiary and issues sanctions is therefore granted as to the interrogatories and documents only. Defendant is precluded from introducing any evidence regarding the subject matter of the outstanding discovery.

On the admissions, Code of Civil Procedure section 2033.290, subd. (e), NOT subdivision (a)(1-2), as presented in the points and authorities [12:4-12] presents a basis to deem admissions admitted upon the violation of an order compelling responses. “If a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted. In lieu of, or in addition to, this order, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” The motion to deem admissions is also granted. (Code Civ. Proc., § 2033.290, subd. (e).)

The court may impose additional monetary sanctions. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.300, subd. (c), 2033.300, subd. (d).) Additional joint and several monetary sanctions in the amount of $125 against Kushy Punch, Inc., and counsel of record to be paid within 30 days for the documents and interrogatories only. (Code Civ. Proc., §§ 2030.290, subd. (c) and 2031.300, subd. (c).) The court elects to deem the admitted admissions sufficient “in lieu” of additional monetary sanctions, and additionally declines to award additional monetary sanctions for work not presented to the court in the written motion.

Next motion for sanctions on August 1, 2022.

Defendants to give notice.