Judge: Steven A. Ellis, Case: 20STCV36288, Date: 2024-12-18 Tentative Ruling

Case Number: 20STCV36288    Hearing Date: December 18, 2024    Dept: 29

Podolsky v. City of West Hollywood
20STCV36288

Defendant’s Motion for Terminating Sanctions
Defendant’s Motion to Compel Further Responses to Form Interrogatories (Set One)
Defendant’s Motion to Compel Further Responses to Special Interrogatories (Set One)

Tentative

The Court GRANTS City’s motion to compel further responses to Form Interrogatories (Set One) filed on November 14, 2024.

The Court GRANTS IN PART City’s motion to compel further responses to Special Interrogatories (Set One) filed on November 13, 2024.

The Court DENIES City’s motion for terminating, issue, and/or monetary sanctions filed on November 12, 2024. 

Background

On September 22, 2020, Liana Podoslky (“Plaintiff”) filed a complaint against City of West Hollywood (“City”), Charter Communications, Spectrum, Time Warner, and Does 1 through 100, asserting 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.

On June 2, 2022, Plaintiff filed the First Amended Complaint against the same defendants for the same causes of action.

On July 6, 2022, City filed a cross-complaint against Roes 1 through 10.

On July 14, 2022, City filed an answer.

On July 26, 2022, Spectrum Pacific West, LLC (“Spectrum”) filed an answer.

Discovery has been difficult in this matter.

Three motions are set for hearing on December 18, 2024.

First, on November 12, 2024, City filed a motion for terminating sanctions, issue sanctions, and/or monetary sanctions. Plaintiff filed on opposition on December 4, and City filed a reply on December 11.  City also filed a supplemental declaration on December 16.

Second, on November 13, 2024, City filed a motion to compel further responses to Special Interrogatories (Set One).  Plaintiff’s counsel filed a declaration in opposition on December 4, and City filed a supplemental declaration in reply on December 13.

Third, on November 14, 2024, City filed a motion to compel further responses to Form Interrogatories (Set One).  Plaintiff’s counsel filed a declaration in opposition on December 4.

Legal Standard

Terminating Sanctions

When a plaintiff fails to obey an order compelling answers 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 (commencing with Section 2023.010).  In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7.”  (Code Civ. Proc., § 2030.290, subd. (c).)

When a plaintiff fails to obey an order compelling responses to requests for production, “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).  In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7.”  (Code Civ. Proc., § 2031.300, subd. (c).)

In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any “misuse of the discovery process,” “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.”  A “misuse of the discovery process” is defined to include (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.) 

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.)

It is “never justified” for a court to impose a terminating sanction “solely because of a failure to pay a monetary discovery sanction.”  (Newland, supra, 40 Cal.App.4th at p. 615.)

Motions to Compel Further Responses to Interrogatories

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.”  (Code Civ. Proc., § 2030.300, subd. (a).)

Notice of a motion to compel further responses must be given “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Id., subd. (c).)

A motion to compel further responses must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a “concise outline of the discovery request and each response in dispute.” (Id., subd. (b)(1) & (b)(2); Cal. Rules of Court, rule 3.1345.)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2030.300, subd. (d).)

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.” 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).)

Discussion

Motion to Compel Further Responses to Form Interrogatories

City served Plaintiff with discovery, including Form Interrogatories (Set One), on June 2, 2022.  (Ferrante-Alan Decl., ¶ 4.)  After numerous delays, a court order, and further delays, Plaintiff served verified responses on January 26, 2024.  (Id., ¶ 15.) 

City contends that the responses are not code compliant.  (Id., ¶ 16 & Exh. I.)  An informal discovery conference (IDC) was scheduled for October 2, 2024, but Plaintiff did not appear.

On November 14, 2024, City filed this motion.  The only Form Interrogatory at issue is No. 12.4, which asks the responding party whether there are any “photographs, films, or videotapes depicting any place, object, or individual concerning the incident or plaintiff’s injuries,” and, if so, requires the responding party to provide certain additional information in response to subparts (a) through (e) of the interrogatory.

In response, Plaintiff has acknowledged that there are photographs of the scene of the accident and has produced them.  Plaintiff has not, however, provided the information required to respond to subparts (a) through (e) of Form Interrogatory 12.4.

Accordingly, the motion to compel is granted.

The request for sanctions is also granted.  Plaintiff has unsuccessfully opposed a motion to compel a further response to interrogatories, Plaintiff has not acted with substantial justification, and there are no other circumstances that make the imposition of the sanction unjust.

The Court sets sanctions on this motion in the amount of $1,000, based on four hours of attorney time multiplied by counsel’s reasonable billing rate of $250 per hour.  (See Ferrante-Alan Decl., ¶ 22.)

Motion to Compel Further Responses to Special Interrogatories

City served Plaintiff with discovery, including Special Interrogatories (Set One), on June 2, 2022.  (Ferrante-Alan Decl., ¶ 4.)  After numerous delays, a court order, and further delays, Plaintiff served verified responses on January 26, 2024.  (Id., ¶ 15.) 

City contends that the responses are not code compliant.  (Id., ¶ 16 & Exh. I.)  An informal discovery conference (IDC) was scheduled for October 2, 2024, but Plaintiff did not appear.

On November 14, 2024, City filed this motion.  City seeks an order compelling Plaintiff to provide further responses to Special Interrogatories Nos. 11, 15, 30-38, 48-52, 59-61, and 82.

On December 5, 2024, Plaintiff served verified further responses.  (Hakopian Decl., ¶ 5 & Exh. C.)  City no longer seeks an order to compel further responses to Special Interrogatories Nos. 15, 48, and 82.  (Id., ¶ 6.)

The Court has reviewed the further responses served on December 5, 2024 and rules as follows:

The motion to compel further responses is GRANTED as to Special Interrogatories Nos. 11, 35-38, 49-52, and 59-61 is granted.  These responses are not code compliant.

The motion to compel further responses is DENIED as to Special Interrogatories Nos. 30-34.  The response are code compliant.

The request for sanctions is also granted.  Plaintiff has largely opposed a motion to compel a further response to interrogatories unsuccessfully (although not entirely), Plaintiff has not acted with substantial justification, and there are no other circumstances that make the imposition of the sanction unjust.

The Court sets sanctions on this motion in the amount of $750, based on three hours of attorney time multiplied by counsel’s reasonable billing rate of $250 per hour.  (See Ferrante-Alan Decl., ¶ 22.)

Motion for Terminating, Issue, and/or Monetary Sanctions

On March 15, 2023, the Court granted City’s motion to compel Plaintiff to provide initial responses to form interrogatories, special interrogatories, and requests for production.  The Court ordered Plaintiff to provide with responses within 30 days.  The Court also ordered Plaintiff and counsel, jointly and severally, to pay $450 in sanctions.

Plaintiff did not comply with this order.  (Ferrante-Alan Decl., ¶ 13.)  On July 20, 2023, Plaintiff served unverified, incomplete responses.  (Id., ¶ 15.)

On January 26, 2024, Plaintiff served verified further response to the form interrogatories, special interrogatories, and requests for production.  (Id., ¶ 20.)  City contends that these responses are not code compliant.  (See id., ¶ 21.)

On April 26, 2024, Plaintiff served another round of unverified, incomplete response.  (Id., ¶ 22.)

City previously moved for terminating, issue, evidence, and/or monetary sanctions relating to these same discovery requests on June 7, 2023.  The hearing on the motion was initially set for July 25, continued to August 29, and then denied.

City now brings a second motion for terminating, issue, and/or monetary sanctions, based on a combination of Plaintiff’s past conduct and Plaintiff’s continuing failure to comply with her obligations under the orders of the Court as well as under the Civil Discovery Act.

For terminating sanctions, 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.  City has 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 or an issue sanction would create such a windfall for City.  City would be far better off if the requested sanctions were granted than if Plaintiff had complied with her obligations.

The Court, above, has granted two motions to compel and imposed additional significant monetary sanctions on Plaintiff.  The request for terminating sanctions, issue sanctions, or even further monetary sanctions is not supported by the record and is denied. 

Of course, if Plaintiff continues to fail to comply with her obligations under the Civil Discovery act and this Court’s orders, City may file a new motion and seek further sanctions, including nonmonetary sanctions.  And if three awards of monetary sanctions (one in 2023 and two in this order) are not sufficient to bring Plaintiff into compliance with her obligations to respond to discovery, the Court will give strong consideration to granting City’s request for serious nonmonetary sanctions.

Conclusion

The Court GRANTS City’s motion to compel further responses to Form Interrogatories (Set One) filed on November 14, 2024.

The Court ORDERS Plaintiff to provide a verified, written, code compliant response to Form Interrogatory 12.4, including all subparts, within 10 days of notice.

The Court GRANTS IN PART City’s request for monetary sanctions on the motion to compel further responses to Form Interrogatories (Set One).

The Court ORDERS Plaintiff and counsel Andy Basseri, jointly and severally, to pay additional monetary sanctions under the Civil Discovery Act to City (through counsel) in the amount of $1,000 within 30 days of notice.

The Court GRANTS IN PART City’s motion to compel further responses to Special Interrogatories (Set One) filed on November 13, 2024.

The Court ORDERS Plaintiff to provide a verified, written, code compliant response to Special Interrogatories Nos. 11, 35-38, 49-52, and 59-61 within 10 days of notice.

The Court GRANTS IN PART City’s request for monetary sanctions on the motion to compel further responses to Special Interrogatories (Set One).

The Court ORDERS Plaintiff and counsel Andy Basseri, jointly and severally, to pay additional monetary sanctions under the Civil Discovery Act to City (through counsel) in the amount of $750 within 30 days of notice.

The Court DENIES City’s motion for terminating, issue, and/or monetary sanctions filed on November 12, 2024. 

Moving Party is ordered to give notice.