Judge: Steven A. Ellis, Case: 20STCV27217, Date: 2023-08-14 Tentative Ruling
Case Number: 20STCV27217 Hearing Date: January 19, 2024 Dept: 29
Motion for Sanctions filed by Defendant Salvador Gallegos
Motion to Continue Trial filed by Defendants Salvador
Gallegos and Fastenal Company.
Tentative
The Court ORDERS Plaintiff, by January 22, 2024, either
(a) to provide a further supplemental response to Defendant’s Special Interrogatories
Nos. 5-7 that includes the requested contact information for Alejo Mendez, Carmen
Garcia, Manuel Garcia, and Pedro Garcia or (b) to file with the Court and serve
a declaration that sets forth facts explaining in detail the “reasonable and
good faith effort” Plaintiff made “to obtain the information” responsive to the
interrogatories regarding Alejo Mendez, Carmen Garcia, Manuel Garcia, and Pedro
Garcia, including all “inquiry” she made “to other natural persons.”
The Court GRANTS in part Defendant’s request for
monetary sanctions.
The Court DENIES Defendant’s request for
non-monetary sanctions.
The Court
DENIES Defendants’ motion to continue trial.
Background
On July 20, 2020, Plaintiffs Alberto Naranjo and Antonia
Mendez (“Plaintiffs”), filed the Complaint in this action against Defendants Salvador
Gallegos, Fastenal Company, and Does 1 to 100, asserting causes of action for
(1) motor vehicle negligence, (2) general negligence; and (3) loss of consortium
arising out of an automobile accident on May 1, 2019 in Santa Fe Springs, California.
Currently before the Court are two
motions.
First, Defendant
Salvador Gallegos (“Defendant”) filed a motion on October 25, 2023, seeking
monetary and non-monetary sanctions against Plaintiff Antonia Mendez (“Plaintiff”)
for Plaintiff’s alleged failure to comply with this Court’s order of August 29,
2023 (among other things). Plaintiff
filed her opposition on November 30, and Defendant filed his reply on December
7. The hearing was initially set for
December 14 and then was continued, on the Court’s own motion, to January 4,
2024.
After hearing
from counsel, the Court: (1) denied Defendant’s request for sanctions regarding
improper objections; (2) ordered Plaintiff to serve a verification for the
discovery responses in proper form within 7 days; (3) ordered Plaintiff either
to amend her responses regarding the contact information of certain relatives
or to file a declaration with the Court regarding her reasonable and good faith
effort to obtain the information within 7 days; and (4) continued the hearing
on the request for sanctions to January 19.
On January 12,
2024, Plaintiff filed a declaration regarding her efforts to obtain contact
information for her relatives.
Second, on
December 19, 2023, Defendants Salvador Gallegos and Fastenal
Company (“Defendants”) filed a motion to continue trial. Plaintiffs filed their opposition on December
29, and Defendants filed their reply on January 10.
Legal Standard
Motion for Sanctions
After a motion to
compel is granted, if a party “fails to obey an order compelling further
response to interrogatories, 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 ….
In lieu of, or in addition to, that sanction, the court may impose a
monetary sanction under Chapter 7 ….”
(Code Civ. Proc., § 2030.300, subd. (e).)
In
Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010
provides “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: ... (b) The court may impose an issue sanction
ordering that designated facts shall be taken as established in the action in
accordance with the claim of the party adversely affected by the misuse of the
discovery process. The court may also impose an issue sanction by an order
prohibiting any party engaging in the misuse of the discovery process from
supporting or opposing designated claims or defenses. (c) The court may impose
an evidence sanction by an order prohibiting any party engaging in the misuse
of the discovery process from introducing designated matters in evidence." (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.)
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.)
Motion to Continue Trial
Code
Civ. Proc. § 128(a)(8) provides that the court has the power to amend and
control its process and orders so as to make them conform to law and justice.
“The power to determine when a continuance should be granted is within the
discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44
Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of
calendar control including the granting or denying of continuances.” (Park
Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.)
Each
request for a continuance must be considered on its own merits according to
California Rules of Court, Rule 3.1332(c). The court may grant a continuance
only on an affirmative showing of good cause requiring the continuance.
Circumstances of good cause include:
“(1) The
unavailability of an essential lay or expert witness because of death, illness,
or other excusable circumstances;
(2) The
unavailability of a party because of death, illness, or other excusable
circumstances;
(3) The
unavailability of trial counsel because of death, illness, or other excusable
circumstances;
(4) The
substitution of trial counsel, but only where there is an affirmative showing
that the substitution is required in the interests of justice;
(5) The
addition of a new party if: (A) The new party has not had a reasonable
opportunity to conduct discovery and prepare for trial; or (B) The other
parties have not had a reasonable opportunity to conduct discovery and prepare
for trial in regard to the new party's involvement in the case;
(6) A
party's excused inability to obtain essential testimony, documents, or other
material evidence despite diligent efforts; or
(7) A
significant, unanticipated change in the status of the case as a result of
which the case is not ready for trial.”
(Cal.
Rules of Court, Rule 3.1332(c).)
California
Rules of Court, Rule 3.1332 sets forth a list of non-exhaustive factors to be
analyzed when determining whether good cause for a trial continuance is
present. A court considers factors such as:
“(1) The
proximity of the trial date;
(2)
Whether there was any previous continuance, extension of time, or delay of
trial due to any party;
(3) The
length of the continuance requested;
(4) The
availability of alternative means to address the problem that gave rise to the
motion or application for a continuance;
(5) The
prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If
the case is entitled to a preferential trial setting, the reasons for that
status and whether the need for a continuance outweighs the need to avoid
delay;
(7) The
court's calendar and the impact of granting a continuance on other pending
trials;
(8)
Whether trial counsel is engaged in another trial;
(9)
Whether all parties have stipulated to a continuance;
(10)
Whether the interests of justice are best served by a continuance, by the trial
of the matter, or by imposing conditions on the continuance; and
(11) Any
other fact or circumstance relevant to the fair determination of the motion or
application.”
(Cal.
Rules of Court, Rule 3.1332(d).)
Judicial Notice
Defendants
request Judicial Notice for five documents: (1) Plaintiffs’ ex parte
application to continue trial from June 28, 2023, (2) Defendants’ opposition to
Plaintiffs’ June 28, 2023 ex parte application, (3) Defendants’ ex parte
application to continue trial from July 25, 2023, (4) Defendants’ noticed
motion to continue trial from August 14, 2023, and (5) Defendants’’ noticed
motion regarding Plaintiff Antonia Mendez’s refusal to comply with discovery
order.
The
Court GRANTS Defendants’ request for Judicial Notice.
Discussion
Motion for Sanctions
As set forth in more detail in this Court’s Minute Order
of January 4, 2024, Defendant bases his request for sanctions against Plaintiff
on essentially three categories of misuse of the discovery response: (1)
assertion of waived objections; (2) failing to provide a verification in proper
form; and (3) failing to provide contact information for certain relatives.
First, the Court has already determined that no
sanctions will be imposed regarding the objections. (See Minute Order dated January 4, 2024, at
p. 4.)
Second, with regard to the verifications, the Court
ordered on January 4 that verifications be provided in the proper form within 7
days. (Ibid.) The Court
continued the request for sanctions relating to the verification issue.
Having carefully considered the evidence and arguments
of both sides, the Court now determines that Plaintiff’s failure to provide
verifications in a proper form was a misuse of the discovery process, that Plaintiff’s
position was not substantially justified, and that the imposition of a monetary
sanction for this conduct would not be unjust.
Given the relatively straightforward nature of this
issue, the Court sets monetary sanctions in the amount of $750, calculated based
on 1.5 hours of attorney time multiplied by counsel’s reasonable billing rate
of $500 per hour.
The Court does not find any basis to impose non-monetary
sanctions against Plaintiff on the verification issue on this record and at
this time.
Third, with regard to the contact information of
Plaintiff’s relatives, the Court previously ordered Plaintiff to provide code
compliant verified responses, without objection, to Defendant’s Special
Interrogatories. In her most recent responses,
Plaintiff (in relevant part): (a) states that her daughter and son (and each of
their children) are represented by counsel; (b) provides an address and phone
number for her brother but states that his email is “unknown to the plaintiff”;
and (c) lists six aunts and uncles, three of whom live in Mexico and three of
whom live in Washington, and as to each states that she has conducted “a
diligent search and reasonable inquiry” but is unable to provide contact
information for these relatives. (Semon Decl., Exh. D.)
Following the hearing on January 4, the Court
ordered Plaintiff “either (a) to provide a further supplemental response that
includes the requested contact information for her family members or (b) to
file with the Court a declaration that sets forth facts explaining in detail
the ‘reasonable and good faith effort’ Plaintiff made ‘to obtain the
information’ responsive to the interrogatories, including all ‘inquiry’ she
made ‘to other natural persons.’” (Minute
Order dated January 4, 2024, at p. 5.)
On January 12, Plaintiff filed a declaration that
states that as to two of her aunts (Susana and Rosario Garcia) and one of her
uncles (Ramiro Garcia), she has not had any communication with them in more
than 30 years; that she has no idea how to contact them; and that the only
people who might have had some contact information for them were her parents,
who have passed away. (Mendez Decl., ¶¶ 3-4.) Plaintiff did not amend her responses and did
not provide any information in her declaration about her efforts to obtain her
brother’s email or contact information for the other three relatives identified
in her discovery responses – her aunt Carmen Garcia and her uncles Manuel and
Pedro Garcia.
Based on the information in the record, the Court
finds that Plaintiff has provided a sufficient response as to her aunts Susana
and Rosario Garcia and her uncle Ramiro Garcia.
She has not, however, provided a sufficient response as to her aunt
Carmen Garcia or her uncles Manuel and Pedro Garcia; moreover, based on her
silence as to these relatives, and the information that she provided as to the
others, the Court concludes that Plaintiff has violated the Court’s discovery
order of January 4, 2024, has violated the Court’s discovery order of August
29, 2023, and has failed to comply with her obligations under the Civil Discovery
Act. The same is true with regard to the
email address for her brother.
Accordingly, the Court GRANTS Defendant’s motion in
part.
The Court ORDERS Plaintiff, by January 22, 2024, either
(a) to provide a further supplemental response to Defendant’s Special Interrogatories
Nos. 5-7 that includes the requested contact information for Alejo Mendez, Carmen
Garcia, Manuel Garcia, and Pedro Garcia or (b) to file with the Court and serve
a declaration that sets forth facts explaining in detail the “reasonable and
good faith effort” Plaintiff made “to obtain the information” responsive to the
interrogatories, including all “inquiry” she made “to other natural persons.”
The Court also GRANTS in part Defendant’s request
for monetary sanctions. The Court finds
that Defendant has made a sufficient showing for a monetary sanction, that Plaintiff’s
position is not substantially justified, and that the imposition of a monetary
sanction would not be unjust. Given the
relatively straightforward nature of the issue, the Court sets monetary
sanctions in the amount of $1,250, calculated based on 2.5 hours of attorney
time multiplied by counsel’s reasonable billing rate of $500 per hour.
The Court has not previously ordered monetary
sanctions against Plaintiff for these violations, and so at this point the
Court cannot conclude that the imposition of monetary sanctions would not be
sufficient to bring Plaintiff into compliance with her obligations under the
Civil Discovery Act and this Court’s prior orders. Accordingly, the Court DENIES, at this time
and on this record, Defendant’s request for non-monetary sanctions.
Motion to Continue Trial
Trial is currently set for January 24, 2024. This date was set at a hearing on August 14,
2023.
On the merits of the motion to continue the trial
date, the Court begins with two preliminary issues.
First, for some reason Defendants continue to reargue
the merits of an ex parte application that the Court considered, and ruled on,
in June 2023. (Mot., at p. 2; Mem, at pp. 2, 3, 4; Reply at pp. 1, 5,
6.) This reargument has little or
nothing to do with the matters currently pending and is not helpful to the
Court.
Second, the Court reminds Defendants that at the hearing
on August 14, on Defendants’ noticed motion to continue trial, the Court inquired
about the schedule and availability of Defendants’ experts. Defendants’ counsel reported that he “did
check with the experts who we have in this case” and “they actually are all
available in January.” (Semon Decl.,
Exh. E, at p. 16:23-28.)
Despite this clear statement, Defendants now attempt
to rewrite history. In their Motion,
Defendants state, “as was the case last August, some of defendants’ expert
witnesses are still not available for a trial that will commence on January 24,
2024.” (Mot. at p. 2:26-28) In their
Memorandum, Defendants state that in their prior motion (the one heard on
August 14) they “established … that two of the defendants’ expert witnesses
were not available for a trial commencing on January 24.” (Mem. at p. 1:4-7.) Defendants state that two of their experts “remain
unavailable for a trial commencing on January 24.” (Mem. at p. 1:12-13; see also id. at p. 7:20
[stating that two experts “remain conflicted”]; Semon Decl., ¶¶ 12, 21
[similar].)
All of this is contradicted by the counsel’s unambiguous
representation at the hearing that all of the Defendants’ experts were available
for trial in January 2024. And, in fact,
trial was set in January 2024 specifically to accommodate the schedules of
Defendants’ experts.
Defendants offer no explanation for this
inconsistency, no evidence of changed circumstances regarding the schedules of
their experts. As a result, the Court concludes
that there is none. Defendants
represented that their experts were available for trial in January 2024; the
Court set the trial to accommodate the schedules of Defendants’ experts; and,
the Court finds (based on an absence of evidence from Defendants), nothing has
changed.
The more substantial argument from Defendants is
that they advised the Court in August 2023 that lead trial counsel had other
trials scheduled in January, and those trials remain on calendar. Specifically, Defendants state that lead
trial counsel has a case commencing in Orange County on January 16 and another
case in Los Angeles County on January 23.
(Semon Decl., ¶¶ 18-19.) Defendants
also state that lead trial counsel has a full trial schedule from the middle of
March through the end of September 2024.
(Id., ¶ 20.)
The Court recognizes that no one can be in two
places at once. It is also true, of
course, that trials frequently do not proceed as scheduled, for a variety of
reasons (including, but not limited to, settlements, continuances, and the
unavailability of the trial court).
If lead counsel is actually engaged in another
trial when this matter is called for trial, this matter can trail until the
other trial is continued. But the mere
possibility of a conflict, based on trials on calendars, is not good cause for
Defendants’ requested trial continuance of nine months.
The Court has considered all of the factors set
forth in California Rules of Court, rule 3.1332, all of the evidence in the
record, and all of the arguments presented by both sides. The Court finds that Defendants have not
shown good cause for their requested continuance.
The motion to continue trial is DENIED.
Conclusion
The Court ORDERS Plaintiff, by January 22, 2024, either
(a) to provide a further supplemental response to Defendant’s Special Interrogatories
Nos. 5-7 that includes the requested contact information for Alejo Mendez, Carmen
Garcia, Manuel Garcia, and Pedro Garcia or (b) to file with the Court and serve
a declaration that sets forth facts explaining in detail the “reasonable and
good faith effort” Plaintiff made “to obtain the information” responsive to the
interrogatories regarding Alejo Mendez, Carmen Garcia, Manuel Garcia, and Pedro
Garcia, including all “inquiry” she made “to other natural persons.”
The Court GRANTS in part Defendant’s request for
monetary sanctions.
The Court ORDERS Plaintiff and counsel P. Paul Aghabala,
jointly and severally, to pay monetary sanctions under the Civil Discovery Act to
Defendant in the total amount of $2,000, within 30 days of notice of this
ruling.
The Court DENIES Defendant’s request for
non-monetary sanctions.
The Court
DENIES Defendants’ motion to continue trial.
Counsel
for Defendants is ORDERED to give notice.