Judge: Steven A. Ellis, Case: 21STCV05805, Date: 2024-06-18 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: 21STCV05805    Hearing Date: June 18, 2024    Dept: 29

Plaintiff’s Motion for Sanctions

Tentative

The Court will call this matter.  Counsel may not submit on the tentative.

The motion is granted in part and denied in part.

Background

On February 16, 2021, Plaintiff Peter Valdes (“Plaintiff”) filed the complaint in this action against Defendants Costco Wholesale Corporation (“Defendant”) and Does 1 through 50, asserting causes of action for negligence and premises liability arising out of an alleged slip and fall on February 17, 2019, at a gas pump at a Costco on Hoxie Avenue in Norwalk.

On March 26, 2021, Defendant filed an answer.

On May 1, 2024, Plaintiff’s motion to compel the production of documents came before the Court.  Following the hearing, the Court (by Minute Order dated May 1, 2024 [the
“Minute Order”]) ordered Defendant to produce an electronic copy of a training module video.  Defendant contended that, because of certain technical issues, the training module video itself could not be produced, and so the Court ordered that “if a direct copy of the video cannot be produced, Defendant may produce a captured video recording of the training video.”  (Minute Order, at p. 5.)  The Court ordered that Defendant produce the video within 7 days.

Plaintiff contends that Defendant has not complied with the Minute Order.  On May 13, 2024, Plaintiff’s ex parte application to enforce the Minute Order, to sanction Defendant, and continue trial came before the Court.  The Court (1) denied the motion for a new order compelling Defendant to comply with the Minute Order, on the ground that the Court had already made its order a new order was unnecessary; (2) denied the requests for sanctions, without prejudice, as sanctions can be imposed only after notice and an opportunity to respond; (3) continued the trial date to June 24; and (4) ordered that no discovery deadlines were extended, except that either party could pursue further relief relating to the matters addressed in the Minute Order.

On May 20, 2024, Plaintiff filed a motion contending that Defendant has not complied with the Minute Order and requesting the following relief: (1) monetary sanctions in the amount of $1,500; (2) daily trebling of the monetary sanctions until Defendant complies; (3) that the Court set a further hearing for issue and/or evidentiary sanctions if Defendant does not comply with the Minute Order by June 24; and (4) that the Court set a hearing for terminating sanctions.  The hearing on this motion was initially set for June 17. 

Defendant did not file a timely opposition.

On June 11, 2024, the Court, on its own motion, continued the hearing for one day, to June 18.

Defendant filed a untimely opposition on June 13.  This was only three court days before the hearing date.

Plaintiff filed a reply on June 14.

Legal Standard

“Every court shall have the power to … compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” (Code Civ. Proc., § 128, subd. (a)(4).)

“[I]f a party fails to obey an order compelling further response [to a request 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 ….  In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 ….”  (Code Civ. Proc., § 2031.310, subd. (i).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, provides, in pertinent part, “[t]o 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 … sanctions against anyone engaging in conduct that is a misuse of the discovery process.”  Sanctions may include a monetary sanction, an issue sanction, an evidence sanction, or a terminating sanction.

Section 2023.010 defines a “misuse of the discovery process” 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.

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.)

Discussion

On May 1, 2024, the Court granted Plaintiff’s motion to compel Defendant to produce documents responsive to Request No. 6 in a deposition notice.  As set forth in the Court’s Minute Order, Request No. 6 requests production of:

“Any and all DOCUMENTS relating to safety training of new Costco Wholesale Corporation gas station attendants, in effect at the time of the SUBJECT INCIDENT, including any training videos, particularly the training video(s) related to handling gas spills.”

Plaintiff contends that in response to the Minute Order, Defendant made an incomplete production, and the videos that were produced “are horrendous quality” with extensive and distracting background noise that make them unsuitable for use at trial.  (See Araj Decl., ¶¶ 4-6.)

As a threshold matter, Plaintiff asks this Court to disregard Defendant’s late-filed opposition.  In other circumstances, the Court might well disregard an opposition filed so late, without even a hint of an excuse offered by the filing party.  The Court, however, prefers to resolve disputes on the merits, rather than based on a procedural default, and after reviewing the opposition and supporting declaration, the Court exercises its discretion under these circumstances, to consider the late-filed opposition.  The Court also considers the reply, and allows Plaintiff additional time at the hearing (if needed) to provide any further oral arguments in reply to the late-filed opposition.

Turning to the merits, the Court finds, on this record, that Defendant has violated the Minute Order.  Discovery is not a game, and producing “horrendous” quality videos that are not usable at trial is not consistent with Defendant’s obligations under the Civil Discovery Act or the Minute Order. 

Notably, even in the late-filed opposition, Defendant does not contest Plaintiff’s factual contention that the videos are of “horrendous” quality.  Defendant’s silence on this point is deafening.  The Court treats this as conceded.

Instead, Defendant continues to argue the merits of the motion that the Court heard on May 1 and on which the Court made its ruling.  Defendant, of course, is free to disagree with the Court’s ruling, but Defendant must nonetheless comply with the Court’s orders.  Arguing now, six weeks after the Court made its orders, in a late opposition, that the motion should have been denied because it was moot and that no good cause was shown does not help Defendant’s position.  (Flock Decl., ¶¶ 9, 15.)  The issue before the Court is whether Defendant complied with the Minute Order, not whether it was a correct ruling.

Next, the Court turns to what sanctions (if any) should be imposed for Defendant’s violation of the Minute Order. 

Plaintiff requests monetary sanctions.  (Notice of Motion, Item No. 1.)  That request is granted.  Defendant has failed to comply with the Minute Order, Defendant’s conduct is not substantially justified, and the imposition of sanctions would not be unjust.  (See Code Civ. Proc., § 2031.310, subd. (i).)  The Court sets monetary sanctions in the amount of $1,500; based on the evidence submitted by Plaintiff, which the Court credits and finds reasonable, an even higher amount of sanctions could be appropriate here, but Plaintiff requests only $1,500.  (Plaintiff’s counsel has shown, with evidence, that he reasonably incurred four hours of work on the motion, his billing rate is $450 per hour, and counsel also incurred a $60 filing fee.)  (See Araj Decl., ¶ 8.) 

The Court DENIES the request that the monetary sanctions be subject to mandatory, daily trebling.  (Notice of Motion, Item No. 2.)  Plaintiff offers no legal or factual basis for such relief.

The Court will hear from counsel with regard to the various items of non-monetary sanctions requested by Plaintiff.  (Notice of Motion, Item No. 3.)  Plaintiff requests that such additional sanctions be ordered after an Order to Show Cause hearing; it is unclear to the Court why Plaintiff is requesting this additional step or when Plaintiff is proposing that the matter be heard, given that the case is set for trial on June 24.

Conclusion

The Court GRANTS Plaintiff’s request for monetary sanctions.

The Court ORDERS Defendant and its counsel Tharpe & Howell, LLP, jointly and severally, to pay monetary sanctions under the Civil Discovery Act in the amount of $1,500 to Plaintiff within 30 days of notice.

The Court DENIES Plaintiff’s request for a mandatory trebling order.

The Court WILL HEAR FROM COUNSEL on the request for the setting of an Order to Show Cause hearing as to non-monetary sanctions.

Moving Party is ordered to give notice.