Judge: Steven A. Ellis, Case: 20STCV36288, Date: 2023-08-29 Tentative Ruling
Case Number: 20STCV36288 Hearing Date: August 29, 2023 Dept: 29
TENTATIVE
Defendant’s motion
for sanctions against Plaintiff is GRANTED in part and DENIED in part.
Defendant’s request
for monetary sanctions is GRANTED.
Defendant’s
requests for evidence, issue, and terminating sanctions are DENIED.
Background
On September 22, 2020, Plaintiff Liana Podoslky
(“Plaintiff”) filed a complaint against defendants City of West Hollywood and Charter Communications, Spectrum, Time
Warner, and DOES 1-100, alleging five causes of action for (1) Negligence, (2) Dangerous
Condition of Public Property, (3) Premises Liability, (4) Vicarious Liability,
and (5) Mandatory Duty to Protect Against Injuries. Plaintiff alleges that on
or about September 28, 2018, Plaintiff fell when she was walking in West
Hollywood due to unscrewed plates on the sidewalk across from Time Warner.
On
March 15, 2023, the Court granted the motion of Defendant City of West
Hollywood (“Defendant”) to compel Plaintiff to provide verified responses to
form interrogatories, special interrogatories, and request for production of
documents and to pay sanctions in the amount of $450.00.
On
June 7, 2023, Defendant filed this motion for terminating and/or other sanctions.
No timely opposition was filed.
On
July 21, 2023, two court days before the hearing, Plaintiff filed an opposition
with an incomplete proof of service. The
opposition asserted that Plaintiff had (belatedly) provided the discovery
responses that were the subject of the prior Court order.
At the
initial hearing on this motion on July 25, the Court continued the matter and
ordered Plaintiff to file an opposition nine court days before the new hearing
date and to meet certain other requirements.
Plaintiff did not comply with this order, but Plaintiff did file a late
opposition on August 17. (Plaintiff
asserts that technical issues interfered with a timely filing; Defendant
questions that explanation.)
Defendant
filed a reply on August 22 that doubles down on the request for terminating sanctions
and cites, as additional support, Plaintiff’s failure to comply with the
Court’s orders on July 25, 2023.
Legal
Standard
CCP section
2023.030 provides that, "[t]o the extent authorized by the chapter
governing any particular discovery method..., the court, after notice to any
affected party, person, or attorney, and after opportunity for hearing, may
impose... [monetary, evidence, and terminating] sanctions against anyone
engaging in conduct that is a misuse of the discovery process...." CCP section
2023.010 provides that "[m]issues 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...."
"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 (quoting Lang
v. Hachman (2000) 77 Cal.App.4th 1225, 1246).) "Generally, '[a]
decision to order terminating sanctions should not be made lightly. But where a
violation is 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.'" (Los
Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)
"Under this
standard, trial courts have properly imposed terminating sanctions when parties
have willfully disobeyed one or more discovery orders." (Id. (citing Lang,
supra, 77 Cal.App.4th at pp. 1244- 1246); see, e.g., Collisson X Kaplan v.
Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions
imposed after defendants failed to comply with one court order to produce
discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal App
3d 481, 491 (disapproved on other grounds in Garcia v. McCucchen (1997)
16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for
failing to comply with a discovery order and for violating various discovery
statutes).)
Discussion
Defendant moves
for terminating sanctions on the ground that Plaintiff failed to comply with
the Court's March 15, 2023, order compelling
Plaintiff to provide verified responses to form interrogatories, special
interrogatories, and request for production of documents. (Defendant also identifies Plaintiff’s
failure to pay the monetary sanctions ordered by the Court, but the remedy for
a failure to pay an award of monetary sanctions is collection, not a terminating
or further sanction.) In the reply,
Defendant also argues that Plaintiff’s failure to comply with the Court’s July
25, 2023, order is an additional basis for sanctions.
On March 15, 2023, this Court granted
Defendant’s motion to compel Plaintiff to provide verified responses to form
interrogatories, special interrogatories, and request for production of
documents within 30 days and imposed sanctions in the amount of $450 on
Plaintiff. (Court Order of March 15, 2023 [the “Order”].) On March 22, 2023, Defendant served Plaintiff
with a Notice of Ruling of the Court’s Order. (Dykes Decl., ¶ 8; Exhs. G, H.) Subsequent
to the Court’s Order, Plaintiff has not served verified discovery responses. (Id.,
¶ 9.) Further, Plaintiff has failed to pay the monetary sanctions. (Ibid.)
Complicating the matter, however, is the
fact that Plaintiff did serve some written, verified discovery responses, and
did produce some documents, on March 14, 2023.
(Id., ¶ 6 & Exhs. D, E.) This
was one day before the March 15 hearing, and the Court was apparently unaware
of the responses when the Court made its order.
(See Order at 3 [“Plaintiff has not responded to the discovery.”].)
Moreover, and more recently, Plaintiff
served verified amended responses to the discovery on July 20, 2023.
On this record, the Court finds that
there is no sufficient basis for terminating sanctions, issue sanctions, or evidence
sanctions. Terminating sanctions in
particular are reserved for the most extreme cases of repeated, willful
violations, which the record does not at this time show. In addition, such discovery sanctions should
not be imposed in a manner that would put the party seeking discovery in a
better position than they would be in if they had received timely
responses. (Rutledge v.
Hewlett-Packard (2015) 238 Cal.App.4th 1164, 1194.) And yet, this is precisely what Defendant
seeks here: Defendant would be in a far better position with terminating
sanctions, issue sanctions, or evidence sanctions than it would have been with
a timely and code-complaint set of responses.
The Court does finds, however, that
additional monetary sanctions are appropriate.
Plaintiff previously was sanctioned for violating her obligations under
the Civil Discovery Act. Then, after the
Court ordered Plaintiff to provide responses by a date certain, Plaintiff
violated that court order. For the
violation of that discovery order, monetary sanctions are appropriate and
authorized. (Code Civ. Proc., § 2030.290,
subd. (c) & § 2031.300, subd. (c).)
Indeed, it is unclear to the Court whether Plaintiff would have ever complied
with the Court’s order absent Defendant’s motion for sanctions. Plaintiff has shown no substantial
justification for her conduct and the imposition of a further monetary sanction
would not be unjust. Accordingly, the Court
orders monetary sanctions against Plaintiff in the amount of $1,350, calculated
as 6 hours of reasonable attorney time on the motion (including two hearings,
reviewing two responses, filing a detailed reply, and attending two hearings)
at the rate of $225 per hour. (See Dykes
Decl., ¶ 10.)
Finally, the Court
notes that if Defendant contends that Plaintiff’s amended responses are not
code compliant, nothing in this order precludes Defendant from pursuing a
motion to compel further responses (along with any appropriate request for
sanctions), and of course an Informal Discovery Conference.
Conclusion
The Court DENIES Defendant’s
requests for terminating sanctions, issue sanctions, and/or evidence sanctions.
The Court GRANTS
Defendant’s request for further monetary sanctions. Plaintiff and counsel of record Andy Basseri
are ordered, jointly and severally, to pay discovery sanctions to Defendant in
the amount of $1,350 within 30 days of notice of this order.
Moving party is
ordered to give notice.