Judge: Steven A. Ellis, Case: 20STCV39647, Date: 2023-08-08 Tentative Ruling

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV39647    Hearing Date: September 28, 2023    Dept: 29

TENTATIVE

Defendant Julia McDonough’s motion for terminating sanctions is DENIED. 

Defendant’s motion for a further monetary sanction is GRANTED.

Background

On October 15, 2020, Plaintiff Ana Zuniga (“Plaintiff”) filed a complaint against Defendant Julia McDonough (“Defendant”), asserting two causes of action for negligence and premises liability. Defendant’s pet allegedly attacked Plaintiff on November 16, 2022, when she was on Defendant’s property. 

On January 12, 2023, the Court granted Defendant’s motions to compel Plaintiff to provide verified responses to form interrogatories, special interrogatories, and requests for production of documents and awarded sanctions in the amount of $530.00.

On June 20, 2023, Defendant filed a motion for terminating sanctions. No opposition was filed. On August 8, 2023, this Court denied Defendant’s motion for terminating sanctions without prejudice based on the Court’s concern regarding service.

On August 10, 2023, Defendant filed a new motion for terminating sanctions. Defendant also requests monetary sanctions.  The service issue previously identified by the Court appears to have been addressed. No opposition has been filed.

Legal Standard

Code Civ. Proc., § 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...." Code Civ. Proc., § 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 Julia McDonough moves for terminating sanctions against Plaintiff Ana Zuniga for failing to comply with the Court’s January 12, 2023 order to provide verified responses to Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents. Defendant also requests monetary sanctions in the amount of $395.00.

On January 12, 2023, this Court granted Defendant’s motions to compel Plaintiff to provide verified responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents. (Min. Order 1/12/23.) The Court ordered Plaintiff provide verified responses to the request for discovery without objections within 30 days of the order. (Id.) The Court additionally ordered sanctions against Plaintiff in the amount of $530.00 to be paid within 30 days of the order. (Id.) Plaintiff has not provided the verified responses as ordered. (Chidi Decl., ¶¶ 4-5.)

On or about April 24, 2023, Defendant’s counsel spoke with Plaintiff’s counsel regarding the requested verified responses. (Id., Exh. B.) Furthermore, Defendant’s counsel sent a meet and confer email on June 5, 2023 to Plaintiff’s counsel indicating that a motion for terminating sanctions and seeking monetary sanctions would be filed. (Id.)

The evidence before the Court shows that Plaintiff has disobeyed a clear court order to provide responses to form interrogatories, special interrogatories, and document requests. Substantial sanctions against Plaintiff are appropriate for her violation of the Court’s order. The Court’s issuance of monetary sanctions against Plaintiff in January has not been sufficient to bring Plaintiff into compliance with her obligations under the Civil Discovery Act.

The Court has carefully considered Defendant’s request for terminating sanctions. On this record, the Court finds that it is not appropriate to grant that request at this time.

First, Plaintiff’s compliance or noncompliance with the Court’s order to pay monetary sanctions¿is not relevant to the Court’s determination as to whether terminating sanctions¿should be imposed.  (See Newland v. Superior Court¿(1995) 40 Cal.App.4th 608, 610, 615 (finding a court may not issue a terminating sanction for failure to pay a monetary discovery sanction).) A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, Code of Civil Procedure sections 680.010, et seq.  (Id.¿at p. 615.) 

Second, a terminating sanction is a drastic remedy that is appropriate only in the extreme case. Discovery sanctions are meant to enforce the obligations of the Civil Discovery Act, not to punish or to place the propounding party in a better position that she would be in if she had received timely responses. Although Plaintiff’s conduct merits substantial sanctions, Defendant has not yet demonstrated that a terminating sanction is justified in this matter.

Defendant does not request issue or evidentiary sanctions.

The Court does grant Defendant’s request for an additional monetary sanction in light of Plaintiff’s ongoing violation of the Court’s previous order and Plaintiff’s obligations under the Civil Discovery Act. An additional monetary sanction of $395 is awarded, calculated as two hours of attorney time, multiplied by counsel’s billing rate of $165 per hour, plus a filing fee of $65. (Chidi Decl., ¶ 10.)

Conclusion

Accordingly, Defendant Julia McDonough’s motion for terminating sanctions is DENIED. The denial is without prejudice to Defendant seeking issue or evidentiary sanctions, or to Defendant seeking terminating sanctions if there are further violations of Court Orders and/or the Civil Discovery Act.

Defendant’s motion for a further monetary sanction is GRANTED.

Plaintiff is ordered to pay an additional monetary sanction of $395 to Defendant within 30 days of notice of this order.

Moving party to give notice.