Judge: Steven A. Ellis, Case: 20STCV40469, Date: 2023-07-20 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
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: 20STCV40469    Hearing Date: November 29, 2023    Dept: 29

TENTATIVE 

The Court DENIES Defendant’s request for terminating sanctions.

The Court GRANTS Defendant’s request for further monetary sanctions.

Background 

This case arises out of a motor vehicle accident on November 29, 2019, on Sunset Boulevard in Los Angeles.  On October 21, 2020, Plaintiff Gennadiy Birger (“Plaintiff”) filed a complaint against Defendants Linda Lasater (“Defendant”) and Does 1 to 60 alleging causes of action for: (1) general negligence; and (2) motor vehicle negligence.  On January 19, 2021, Defendant filed and answer.

On March 30, 2021, Plaintiff substituted in Randall M. Awad as counsel.

On January 10, 2023, after several prior Final Status Conferences at which one or both parties had not submitted the trial readiness documents required by the Standing Order, the Court held a Final Status Conference and ordered Plaintiff’s counsel Mr. Awad to pay sanctions in the amount of $500 to the Superior Court of California, County of Los Angeles by February 1, 2023 for failure to submit trial readiness documents. 

On July 21, 2023, a hearing was scheduled on Defendant’s motion to compel an independent medical examination (“IME”) of Plaintiff.  Counsel for the parties, including Mr. Awad (by telephone), appeared.  After reviewing the tentative ruling, Mr. Awad requested the opportunity to be heard.  The hearing was continued to July 27.

On July 27, 2023, the motion to compel an IME came on for hearing.  Mr. Awad appeared (by telephone).  After stating his appearance, Mr. Awad disconnected.  The Court granted Defendant’s motion, ordered Plaintiff to appear for her IME on August 23, and ordered Plaintiff and Mr. Awad (jointly and severally) to pay monetary sanctions in the amount of $585 to Defendant.  The Court ordered Defendant to give notice.  Defendant served Mr. Awad with notice on July 28, 2023.

On September 12, 2023, Defendant filed and served the motion currently before the Court for terminating sanctions and monetary sanctions.  The motion was initially set for hearing on October 27.

Plaintiff filed an untimely opposition on October 26, one day before the hearing.

On October 27, the Court, on its own motion, continued the hearing to November 29.

On November 21, Plaintiff filed a reply, a supporting declaration, a request for judicial notice, and objections to Plaintiff’s evidence.

On November 27, Plaintiff filed an objection to Defendant’s request for judicial notice.

Legal Standard 

“If a party is required to submit to a physical or mental examination . . . but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . [and] [i]in lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction.” (Code Civ. Proc. § 2032.410.) A court may impose a terminating sanction by “[a]n order dismissing the action, or any part of the action, of that party.” (Code Civ. Proc. § 2023.030(d)(3).)

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.)

Preliminary Matters

The Court GRANTS Defendant’s request for judicial notice, but the Court takes not take judicial notice of the truth of the matters asserted in the judicially noticed documents.  (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.) 

The Court OVERRULES Defendant’s objections to Plaintiff’s evidence.

The Court accepts and will consider Plaintiff’s late filed opposition, as well as Defendant’s reply.

The Court rejects Plaintiff’s attacks on this Court’s order dated July 27, 2023.  First, the Court has made an order.  Plaintiff did not file a motion for reconsideration or an appeal.  Regardless of whether Plaintiff or her counsel believes the order is incorrect, Plaintiff must comply with it.  Second, based on the evidence in the record, the Court finds that Plaintiff’s counsel was given proper notice of the order.  Third, it appears that what Plaintiff has established is, at most, a two-day typographical error in a proof of service.

The Court rejects Plaintiff’s unclean hands argument.

Discussion           

Defendant contends that the Court should issue terminating sanctions because no other form of sanctions is effective as Plaintiff has been previously sanctioned in this matter and has yet to pay any portion thereof.  Plaintiff contends that a terminating sanction is unjust.

Plaintiff is in violation of a valid court order requiring her to appear for and submit to an independent medical examination.  This is a serious, and apparently willful, violation of a court order, and the Court takes this matter very seriously. 

Having said that, the Court finds that terminating sanctions are not appropriate at this time.  The Court cannot find, on this record, that other non-monetary sanctions (which Defendant has not even requested) would be insufficient to bring Plaintiff into compliance with her obligations under the Civil Discovery Act and this Court’s order.  Accordingly the Court DENIES the request for terminating sanctions.

The Court does, however, GRANT Defendant’s request for further monetary sanctions.  Plaintiff remains in violation of this Court’s Order and has not indicated that she is prepared to comply.  Bringing a motion for further sanctions was reasonable, necessary, and justified under the circumstances.  The conduct of Plaintiff and her counsel has not been substantially justified, and the imposition of sanctions would not be unjust.

The Court sets an additional monetary sanction in the amount of $760, calculated as 4 hours of attorney time, multiplied by four hours of time, plus a filing fee of $60.  (Galang Decl., ¶ 7.)

The Court ADMONISHES Plaintiff and her counsel to comply with all court orders, including the order issued on July 27, 2023.  Failure to do so may lead to further sanctions, including both monetary and non-monetary sanctions (including, but not limited to, terminating sanctions).

Conclusion 

The Court DENIES Defendant’s request for terminating sanctions.

The Court GRANTS Defendant’s request for further monetary sanctions.  The Court ORDERS Plaintiff and her counsel Randall Awad, jointly and severally, to pay monetary sanctions to Defendant under the Civil Discovery Act in the amount of $760 within 21 days of notice of ruling.

All other requests for relief sought in connection with this motion are DENIED.

Moving party is ordered to give notice.