Judge: Stephen P. Pfahler, Case: 20STCV44809, Date: 2023-03-23 Tentative Ruling

Case Number: 20STCV44809    Hearing Date: March 23, 2023    Dept: F49

Dept. F-49

Date: 3-23-23

Case #20STCV44809

TRIAL DATE: 11-13-23 c/f 11-14-22

TERMINATING SANCTIONS

MOVING PARTY: Defendant, Santa Clarita Valley Water Agency, et al.

RESPONDING PARTY: Plaintiffs, Sandra Enerle

RELIEF REQUESTED

Motion for Terminating Sanctions

SUMMARY OF ACTION

Plaintiffs, Katarina Ford, et al. own and/or occupy certain homes in Stevenson Ranch and Valencia. From approximately June 2020 to October 2020, Defendant Associated Tank sandblasted a water tank in proximity to the homes, thereby causing the disbursement of “abrasives, particulates, and other toxins into the air” into the community. Plaintiffs allege the manifestation of physical symptoms, property damage, and emotional impacts, as well as interference/loss of use of property.

The work was contracted by Defendants Five Point Holdings, LLC, et al., who are developing an adjacent community and were required to construct said water tank for service to the new community.

On November 23, 2020, Plaintiffs filed their complaint for Trespass, Private Nuisance – Continuing, Public Nuisance – Continuing, Negligence, Inverse Condemnation, Strict Liability for Ultrahazardous Activity, Intentional Infliction of Emotional Distress, and Fraudulent Concealment. On May 3, 2021, Plaintiffs filed their first amended complaint. On July 29, 2021, Plaintiffs filed their 261 paragraph second amended complaint. On January 10, 2022, Plaintiffs filed their third amended complaint. (All amended complaints were filed via stipulation.)

On May 27, 2022, the court denied plaintiff Sandra Enerle’s motion for leave to file a late government claim against the City of Santa Clarita/Santa Clarita Water Agency.

Dozens of requests for dismissals by Plaintiffs have been filed since September 10, 2021.

RULING: Denied in Part/Moot in Part/Granted in Part

Request for Judicial Notice: Granted.

Defendants Santa Clarita Valley Water Agency, Five Point Holdings, LLC, Five Point Land, LLC, Five Point OPCO GP, LP, and Five Point Operating Company, LP move for terminating sanctions against plaintiffs Malaika Amneus; Jessica, Sophie, Kyle, and Jake Carlson; Shelitta Castille,; Paul Chun; Kimlien Do; Eun, Keith, Gregory, and Annie Gak; Broek Johnson; Kimberley and Kyung Kim; Julie Mackey;  David Nguyen; Gregory Gloria Quijano-Siade; Jose Ramos; Diana Reyes; Tim Richardson; Jessica Thompson; Jason Thompson; Gary Trenda; and, Jason VanBennekum. Defendants move for terminating sanctions on grounds that the identified plaintiffs failed to comply with the stipulation for the provision of verified responses to the Fact Sheet No. 1 and signed HIPAA Waivers. [Declaration of Walter Wendelstein, Ex. A.] Plaintiffs in opposition represent all parties have now complied or at least substantially complied, and the imposition of terminating sanctions would constitute an unduly harsh, unjustified result. Defendants in reply reiterate the right to seek terminating sanctions and the failure of the identified parties to comply. Defendants maintain prejudice as a result of the delays.

Plaintiff acknowledges the dismissals of the following: Malaika Amneus; Jessica, Sophie, Kyle, and Jake Carlson; Jose Ramos; Julie Mackey; and, Diana Reyes. The motion is therefore moot as to these dismissed parties, and the court only addresses the remaining identified plaintiffs.

Section IV, Paragraph 16(a) allows for Defendants to seek terminating sanctions in case of a failure to comply with the stipulation. Defendants must serve notice of an intent to seek terminating sanctions with a 40 day window for the non-complying parties to cure. Failure to cure constitutes an intent to abandon the action and willful violation of the stipulation. Notices were mailed on May 19, June 2, and July 6, 2022. [Wendelstein Decl., Ex. C-E.] Plaintiffs cite to the stipulation language as well regarding the right to cure the deficiencies during the 40-day notice period, with a reference to section 16(b) regarding the determination of substantial compliance.

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, supra, 128 Cal.App.4th at pp. 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.) “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.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.  (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

Defendants rely on Code of Civil Procedure section 2023.030, which provides for the right to seek terminating sanctions following “misuse of the discovery process.” (Code Civ. Proc., 2023.030, subd. (d).) Defendant also cite to section 583.150, which provides for the imposition of sanctions under a rule adopted by the court. Because the stipulation was signed by the court on January 27, 2022, Defendants represent the stipulation constitutes a court order.

The court agrees that the subject stipulation in effect constitutes a court order for compliance with certain discovery obligations agreed upon by the parties. A violation of the stipulation therefore constitutes an equivalent violation of a court order, thereby justifying terminating sanctions for the violation of the existing order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280.) The stipulation itself in fact cites to the willful or no longer interested in prosecuting claims standard.

In making a finding of either an abandonment of the claim or willful failure to comply, Defendants rely on the lack of responses. The delayed responses are not disputed, though the parties apparently disagree that Plaintiffs served responses within the 40-day window, even after multiple extensions. [Wendelstein Decl., ¶ 10; Declaration of Maria Weitz, ¶¶ 4-8.] Plaintiffs represent compliance with the outstanding discovery for Plaintiffs Eun, Keith, Gregory, and Annie Gak on May 19, 2022, and August 9, 2022; Tim Richardson on January 4, 2023; Gary Trenda on March 3, 2023; Broek Johnson on March 3, 2023; and Gloria Quijano-Slade on June 12, 2022 and August 12, 2022. Plaintiffs concede to the lack of any responses to Shelitta Castille; Paul Chun; Kimlien Do; Jason VanBennekum; Jessica Thompson; Jason Thompson; and David Nguyen, though qualifies the lack of response with a question as to whether the notice of potential terminating sanctions reached the parties. Plaintiffs request a continuance in order to “make a final attempt” to reach them prior to the imposition of any potential terminating sanction. The opposition lacks any address of Kimberley and Kyung Kim.

The court cannot make a factual determination from the declarations as to whether Plaintiffs timely complied with the responses or not, and therefore whether the motion was erroneously filed as to certain parties. Regardless, the court accepts the representations of Plaintiffs’ counsel regarding timely service, or at a minimum, the ability to present proof of timely service with a follow-up “copy” of said previously served responses, if necessary. Given the availability of said responses, the court declines to impose a terminating sanction on said Plaintiffs in that Defendants cannot establish either an abandonment of claims or prejudice as a result of the time taken to sort out the discovery. The court therefore DENIES the motion as to Plaintiffs Eun, Keith, Gregory, and Annie Gak; Tim Richardson; Gary Trenda; Broek Johnson; and, Gloria Quijano-Slade. (The court also acknowledges the withdrawal of the motion as to Eun, Keith, Gregory, and Annie Gak; and, Gloria Quijano-Slade due to the submission of HIPPA Release forms.)

The motion is MOOT as to dismissed Plaintiffs Malaika Amneus; Jessica, Sophie, Kyle, and Jake Carlson; Jose Ramos; Julie Mackey; and, Diana Reyes. As for the remaining Plaintiffs, Shelitta Castille; Paul Chun; Kimlien Do; Jason VanBennekum; Jessica Thompson; Jason Thompson; and David Nguyen including the unaddressed, Kimberley and Kyung Kim, the court finds the argument regarding the lack of notice of the potential sanctions motions lacks support. Defendants met their burden in serving counsel. The failure of a party to respond to their own attorneys indicates the parties no longer live at the residence, an intent to abandon the action, or any another potential motive that in no way shifts the burden back to Defendants for failure to properly provide notice. Plaintiffs’ counsel is responsible for maintaining communication, and lacks any justification for continued delays on an undisputed stipulation. The court therefore finds the remaining identified parties apparently abandoned the case, thereby justifying terminating sanctions. The motion is therefore GRANTED as to the identified remaining Plaintiffs.

OSC re: Long Cause Trial set for October 18, 2023.

Moving parties to give notice.