Judge: Steven A. Ellis, Case: 19STCV39053, Date: 2023-07-10 Tentative Ruling

Case Number: 19STCV39053    Hearing Date: January 26, 2024    Dept: 29

Motion to Compel Plaintiff’s Compliance with the Court’s August 23, 2023 Order, and Request for Additional Monetary Sanctions and Evidentiary Sanctions filed by Defendant Los Angeles Dodgers, LLC.

Tentative

Defendant’s request for an evidence sanctions is GRANTED.

Defendant’s request for an additional monetary sanctions is GRANTED.

Defendant’s request for an order compelling Plaintiff to comply with the Court’s prior order is DENIED as unnecessary.

Background

On October 31, 2019, Plaintiff Jhovany Steve Argueta (“Plaintiff”) filed a complaint against Los Angeles Dodgers, LLC (“Defendant”) and a number of other entities and individuals asserting causes of action for negligence, premises liability, and negligent infliction of emotion distress arising out of an alleged slip and fall incident at Dodger Stadium on November 1, 2017.  Defendant filed its Answer on February 11, 2020.

On July 31, 2023, Defendant filed a motion to compel Plaintiff to produce further documents pursuant to the Request for Production of Documents included in the Notice of Plaintiff’s deposition.  The evidence presented to the Court showed that (1) Plaintiff had appeared for his deposition but did not produce the requested documents; (2) Plaintiff made a partial production of some responsive documents after the deposition.

On August 23, 2023, the Court granted Defendant’s motion.  The Court ordered Plaintiff to produce all responsive documents responsive to Request for Production Nos. 1-8 in the deposition notice in his possession, custody, or control within 30 days of notice.  The Court also ordered Plaintiff and his counsel of record, jointly and severally, to pay monetary sanctions in the amount of $900.00.  The Court at that time denied Defendant’s request for evidentiary sanctions.

Defendant served Plaintiff with notice of the ruling on August 25, 2023.  (Robie Decl., ¶ 8 & Exh. 3.)  Plaintiff had not, as of the time of the filing of the motion, served the responsive documents or paid the sanctions.  (Id., ¶ 9.)

On October 19, 2023, Defendant filed the motion that is now before the Court.  Defendant seeks an order (1) requiring Plaintiff to pay the sanctions ordered on August 23; (2) imposing additional monetary sanctions against Plaintiff; and (3) imposing evidentiary sanctions against Plaintiff.

Plaintiff has not filed any opposition to the motion.

Legal Standard

Code of Civil Procedure section 2025.450 provides that when a party fails to obey a court order compelling the production of documents at a deposition of documents described in a deposition notice:

“the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.”

(Code Civ. Proc., § 2025.450, subd. (h).)  In addition, Code of Civil Procedure section 2025.480 provides that when a party fails to obey a court order compelling documents specified in a deposition notice:

“the failure may be considered a contempt of court. In addition, if the disobedient deponent is a party to the action or an officer, director, managing agent, or employee of a party, the court may make those orders that are just against the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against any party with whom the deponent is affiliated.

(Code Civ. Proc., § 2025.480, subd. (k).) 

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction ordering that any person “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.” Subdivision (c) also authorizes a court to “impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”  A “misuse of the discovery process” includes (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).)

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.) 

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.)

Discussion

On August 23, 2023, the Court ordered Plaintiff to produce all responsive documents responsive to Request for Production Nos. 1-8 in the deposition notice in his possession, custody, or control within 30 days.  The Court also ordered Plaintiff and his counsel of record to pay monetary sanctions in the amount of $900.00. 

Plaintiff has not produced the documents as ordered by the Court.  (Robie Decl., ¶ 9.)  Nor has Plaintiff paid the monetary sanctions.  (Ibid.)

This is substantial discovery abuse.  Plaintiff has failed to comply with his obligations to produce documents as required under the Civil Discovery Act.  Compounding this failure, Plaintiff has also now failed to comply with this Court’s Order of August 23, 2023.  Serious sanctions are warranted for this conduct. 

The Court previously imposed a monetary sanction against Plaintiff and his counsel.  That was not sufficient to bring Plaintiff into compliance with his obligations under the Civil Discovery Act and this Court’s orders.  Accordingly, the Court finds that a further incremental step in escalating sanctions is appropriate in a continuing effort to obtain Plaintiff’s compliance.

The Court GRANTS Defendant’s request for an evidence sanction against Plaintiff.  The Court ORDERS that Plaintiff is prohibited from introducing into evidence in this matter (whether at trial or at any other proceeding in this matter, other than a motion relating to compliance with Defendant’s discovery obligations under the Civil Discovery Act and the Orders of this Court) any documents or other writing that was within Plaintiff’s possession, custody, or control prior to July 5, 2023 (the date of his deposition), and that Plaintiff did not produce in discovery in this matter prior to January 26, 2024 (the date of the hearing on this motion).

The Court finds that this evidence sanction does not create a windfall for Defendant or place Defendant in a better position than it would have been if Plaintiff had simply complied with its obligations under the Court’s orders and the Civil Discovery Act.

The Court also GRANTS Defendant’s request for a further monetary sanction to compensate Defendant for the fees incurred in connection with the bringing of this motion.  The Court sets the monetary sanctions at $1,050, calculated based upon 3.5 hours of attorney time multiplied by counsel’s reasonable billing rate of $300 per hour.  (See Robie Decl., ¶ 2.)

The Court DENIES Defendant’s request for a further order requiring Plaintiff to comply with the provision of the Court’s order requiring Plaintiff to pay monetary sanctions to Defendant.  Plaintiff is already under a legal obligation, enforceable in the same manner as a money judgment, to pay the sanction.  There is no need for, in effect, a duplicative “order to comply with a previous order.”

Conclusion

Defendant’s motion is GRANTED in part and DENIED in part.

The Court GRANTS Defendant’s request for an evidence sanction against Plaintiff. 

The Court ORDERS that Plaintiff is prohibited from introducing into evidence in this matter (whether at trial or at any other proceeding in this matter, other than a motion relating to compliance with Defendant’s discovery obligations under the Civil Discovery Act and the Orders of this Court) any documents or other writing that was within Plaintiff’s possession, custody, or control on July 5, 2023 (the date of his deposition), and that Plaintiff did not produce in discovery in this matter prior to January 26, 2024 (the date of the hearing on this motion).

The Court GRANTS Defendant’s request for an additional monetary sanction.

The Court ORDERS Plaintiff and counsel of record Fred Hanassab, Esq., jointly and severally, to pay an additional monetary sanction under the Civil Discovery Act to Defendant in the amount of $1,050. 

The Court DENIES as unnecessary Defendant’s request for a further order requiring Plaintiff to comply with the provision of the Court’s order requiring Plaintiff to pay monetary sanctions to Defendant.

Defendant is ordered to give notice.