Judge: Steven A. Ellis, Case: 19STCV19943, Date: 2023-10-04 Tentative Ruling

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Case Number: 19STCV19943    Hearing Date: March 25, 2024    Dept: 29

Defendants’ Motion for Terminating Sanctions

Tentative

The motion is denied.

Background

This case arises out of an alleged vehicle accident that occurred on or about June 12, 2017, near the intersection of Temple Avenue and Diamond Bar Boulevard.  On June 7, 2019, Plaintiff Tamara Abdelgainy (“Plaintiff”) filed a complaint against Defendants Tedocio Borja Mendoza, Anthony Torres Demolition Corp. (collectively, “Defendants”), and Does 1 through 50 asserting causes of action for Negligence, Negligence Per Se, Vicarious Liability, Negligent Entrustment of a Motor Vehicle, and Negligent Hiring, Retention, Supervision and Training.  Defendants filed their answer on September 2, 2021.Onn June 7, 2019, Tamara Abdelgainy (“Plaintiff”) filed a complaint against Teodocio Borja Mendoza, Anthony Torres Demolition (collectively “Defendants”), and Does 1 through 50 for (1) negligence, (2) negligence per se, (3) vicarious liability, (4) negligent entrustment of a motor vehicle, and (5) negligent supervision causes of action arising from an automobile accident occurring on June 12, 2017.

On January 5, 2023, Defendants served Plaintiff with Special Interrogatories (Set Two) and Requests for Production of Documents (Set Two).  When Plaintiff did not respond, Defendants filed motions to compel Plaintiff to provide initial responses to the interrogatories and requests for production.  Defendants also requested monetary sanctions.

On January 2, 2024, the Court granted Defendants’ motion to compel, ordered Plaintiff to respond to the discovery requests within 30 days of notice, and ordered Plaintiff’s counsel to pay monetary sanctions in the amount of $707.50.

Plaintiff did not comply with the order.  (Av Decl. ¶ 12.)  Accordingly, on February 15, 2024, Defendants filed this motion for terminating sanctions.

After the motion was filed, Plaintiff belatedly served responses to the interrogatories and requests for production.  (This may have occurred on or about March 8, 2024.)  Based on the reply papers, Defendants do not appear to have any issue (other than the timing of service) with the interrogatory responses.  Defendants contend, however that the document production responses are still deficient.  (See Av Reply Decl. Exh. C.)

Plaintiff filed her opposition to the motion on March 11, 2024.  Defendants filed their reply on March 19.

Legal Standard

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: ... (d) The court may impose a terminating sanction …."  (Code Civ. Proc., § 2023.030.) “Misuses of the discovery process include, but are not limited to, the following: ... (d) Failing to respond or to submit to an authorized method of discovery. ... (g) Disobeying a court order to provide discovery."  (Code Civ. Proc., § 2023.010.)

The Civil Discovery Act provides for an escalating and “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.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they “should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “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.” (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) 

Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure, 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.” (Lopez, supra, 246 Cal.App.4th at p. 604.)  But where discovery violations are “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.” (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.)

The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Court’s orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a “windfall” for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Court’s orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.)

A “terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”  (Newland, supra, 40 Cal.App.4th at p. 615.) An order for monetary sanctions is enforceable as a money judgment under the Enforcement of Judgments Law, Code of Civil Procedure sections 680.010, et seq.  (Ibid.) 

Discussion

Defendant requests terminating sanctions on the ground that Plaintiff failed to comply with this Court’s January 2, 2024 order to serve discovery responses within 30 days, failed to pay sanctions, and has throughout the litigation been reluctant and slow to comply with her obligations under the Civil Discovery Act.

Only after this motion was filed did Plaintiff comply – in part – with the order.  Plaintiff served interrogatory responses, late, but otherwise as ordered.  Plaintiff’s discovery response are woefully deficient and come nowhere close to complying with her obligations under the Civil Discovery Act, and Plaintiff’s counsel has not paid the sanctions, as ordered.

This is serious discovery abuse.  Plaintiff’s misuse of the discovery process, including her refusal to comply with her obligations under the Civil Discovery Act and her failure to obey a clear and direct court order, warrants substantial sanctions.  The only sanction requested by Defendants, however, is a terminating sanction, and Defendants have not made a sufficient showing, on this record, for such an extreme step.

For terminating sanctions, however, a party must present evidence of repeated and willful misuse of the discovery process, as well as evidence that less severe sanctions have not (or likely will not) lead to compliance with the discovery rules.  Defendants have not, on this record at this time, made such a showing.  There has not been a showing of a history or pattern of willful abuse or repeated violations that have not been (or cannot be) cured by lesser sanctions.

Moreover, a discovery sanction should not create a “windfall” for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Court’s orders and the Civil Discovery Act. (Rutledge, supra, 238 Cal.App.4th at p. 1194.)  Here, at this time, a terminating sanction would create such a windfall for Defendants.

Defendants request no other sanctions.

Accordingly, the Defendant’s request for terminating sanctions is DENIED.

The denial as to terminating sanctions is without prejudice to Defendant in seeking other sanctions or seeking a terminating sanction at a later stage of the proceedings based on a further showing of misuse of the discovery process.

Conclusion

The Court DENIES Defendant’s motion for terminating sanctions.

Moving Party is ordered to give notice.