Judge Stephen P. Pfahler, Case 21CHCV00173 2022-07-28 Tentative Ruling

On December 25, 2019, plaintiff Donald Stone and defendant Sunshine Builders, Inc. (Sunshine) entered into a contract for the installation of landscaping and hardscaping at the Stone residence. The contract price was $95,000. Plaintiff alleges that Sunshine abandoned the project after receipt of $78,000 in payment. Plaintiff subsequently hired a second contractor to finish the project at a cost of $49,000.

On March 8, 2021, Plaintiff, in pro per, filed a complaint for Breach of Contract, and Negligence. On April 22, 2021, Defendant Navigator Insurance answered the complaint and filed a cross-complaint against Sunshine Builders and Yehuda Sabban for indemnity. Navigator Insurance issued a $15,000 contractors bond to Sunshine and Sabban. On April 23, 2021, Defendant Hartford Financial Services Group, Inc. answered the complaint.

On June 21, 2021, the court granted the ex parte motion to stay the action pending the motion to compel arbitration. On September 1, 2021, the court denied the motion to compel arbitration, and lifted the stay.

On October 1, 2021, Sunshine Builders, Inc. answered the complaint and filed a cross-complaint against Stone for Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Unjust Enrichment, Declaratory Relief, and Intentional Interference with Contractual Relations. Sunshine Builders, Inc. also answered the Navigator’s Insurance Company cross-complaint. On October 12, 2021, Stone answered the cross-complaint.

On May 12, 2022, the court granted the motion for summary judgment by Hartford Financial Services Group, Inc. on the complaint.

Evidentiary Objections: Not Ruled Upon/Not Relied upon for Ruling on the Motion.

Defendant Sunshine Builders, Inc. move for terminating, issue and/or evidentiary sanctions against Plaintiff Donald Stone based on responses following orders compelling further responses to requests for production of documents (set one), special interrogatories (set one), and form interrogatories (set one), and the refusal to serve additional supplemental responses.

On January 26, 2022, the court specifically ordered Stone to provide further responses to Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Request for Admissions. Defendant concedes supplemental responses were served, but contends the responses remain deficient. [Declaration of Fahim Farivar, Ex. 2.] Defendant sought to obtain additional responses to which Plaintiff refuses to provide. Defendant therefore seeks terminating sanctions, or alternatively evidentiary and/or issue sanctions.

The court electronic filing system shows a four court day late filed opposition from Stone. Plaintiff maintains the responses sufficiently comply with discovery requirements and fully apprize Defendant of all claims. Plaintiff challenges any entitlement to sanctions, and describes the motion as one full of “self-serving lies.”

Defendant in reply accuses Plaintiff of seeking to “muddle” the issues, and reiterates the request for a grant of the motion.

“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.) 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; Department of Forestry & Fire Protection v. Howell¿(2017) 18 Cal.App.5th 154, 191 [“Terminating sanctions are to be used sparingly because of the drastic effect of their application.”].) “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.)

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 court reviewed the supplemental responses to special interrogatories and request for production of documents.[1] Plaintiff in fact responded to all outstanding items and produced documents. The responses present a cursory reiteration of the claims regarding the subject work completed in a non-workmanlike manner. While the responses lack factual specificity sought by Defendant, the court declines to make a finding of willful and blatant disregard sufficient for a complete dismissal of the action.

In consideration of a lesser sanction, the court also finds insufficient justification for such a harsh penalty. Defendant fails to establish that the lack of more factually specific responses precludes the presentation of a sufficient defense to the action. Nothing prevents Defendant from following up on the claims during the deposition of Plaintiff and/or any experts. Plaintiff holds the responsibility to prove the case in principal at trial, and the court finds no basis for precluding said presentation before the completion of all discovery avenues.

The court however imposes additional monetary sanctions in the amount of $500 against Plaintiff Stone payable within 30 days as compensation for the reasonable challenge to the supplemental responses and request for relief. (Code Civ. Proc., §§ 2030.300, subd. (e), 2031.300, subd. (i).)

[1]The exhibits show no supplemental responses for form interrogatories or request for admissions. The court therefore cannot review the sufficiency of the responses notwithstanding the March 25, 2022 meet and confer letter. [Farivar Decl., Ex. 4.]