Judge: Steven A. Ellis, Case: 21STCV15566, Date: 2023-08-14 Tentative Ruling
Case Number: 21STCV15566 Hearing Date: March 15, 2024 Dept: 29
Defendant’s Motion for Terminating and Monetary Sanctions
Tentative
The motion is denied.
Background
According to the Complaint, on April 26, 2019, Plaintiff
Rogelio Magana Castillo (“Plaintiff”)
met with Defendant Kimberly Brooks
(“Defendant”) at Zen Buffet in Monrovia, California.
Plaintiff alleges (among other
things) that Defendant “raised her glass of water towards Plaintiff, stared at
him and sta[r]ted yelling obscene words at Plaintiff right before she threw the
glass at Plaintiff from a distance of less than four (4) feet from Plaintiff.”
(Complaint, ¶ 9.) Plaintiff asserts (among other things) that the glass hit him
“on the left cheekbone area injuring Plaintiffs cheekbone, left eye socket and
left ear.” (Id., ¶ 10.)
Plaintiff filed the complaint against Defendant and Does
1 through 50 on April 26, 2021,
alleging causes of action for
intentional infliction of emotional distress, assault, and battery.
Defendant filed her answer on
November 15, 2022.
On October 25, 2023, Plaintiff’s
counsel was relieved as counsel.
On February 16, 2024, Defendant filed a motion for
terminating sanctions. No opposition has been filed.
Legal Standard
When a party “fails
to obey an order compelling [production of documents in accordance with a
statement of compliance], 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 [of the Civil Discovery Act]. In lieu of, or in addition to, that sanction,
the court may impose a monetary sanction under Chapter 7 [of the Civil
Discovery Act].” (Code Civ. Proc., §
2031.320, subd. (c).)
In Chapter 7 of the Civil
Discovery Act, Code of Civil Procedure section 2023.030 provides that, “[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,” including monetary sanctions, an issue sanction, an
evidence sanction, and a terminating sanction.
(Code Civ. Proc., § 2023.030, subds. (a)-(d).) 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).)
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.)
A
“terminating sanction issued solely because of a failure to pay a monetary
discovery sanction is never justified.”
(Newland, supra, 40 Cal.App.4th at p. 615.) An order for monetary sanctions is enforceable as
a money judgment under the Enforcement of Judgments Law, Code of Civil
Procedure sections 680.010, et seq. (Ibid.)
Discussion
Defendant states that Plaintiff has ranged between slow
to respond to discovery to failing to respond at all. (Bitan Decl., ¶¶ 2-13.) In June 2023, Defendant filed motions to
compel Plaintiff to provide initial responses to form interrogatories, special
interrogatories, and requests for production and a motion for a deemed-admitted
order as to requests for admission. (Id.,
¶¶ 2-5.) Plaintiff provided responses
before the hearing, and so the motions to compel were denied, but the Court
sanctioned Plaintiff $900 on each motion, for a total of $3,600. (Id., ¶¶ 6-7 & Exh. D.) When Plaintiff then failed to produce the promised
documents in response to Requests for Production Nos. 11 and 12, Defendant
filed a motion to compel compliance; the Court granted that motion, ordered
Plaintiff to produce the documents within 14 days of notice, and sanctioned
Plaintiff another $900. (Id., ¶¶ 8-12
& Exh. H.)
As of the filing of this motion, Plaintiff still had not
produced the promised and ordered documents.
(Id., ¶ 14.) Nor has
Plaintiff paid any of the five monetary sanctions awards. (Id., ¶ 15.) As a result, Defendant now seeks terminating
sanctions and a further monetary sanction.
Plaintiff’s violations of repeated orders to pay monetary
sanctions is a serious matter. It is not
alone, however, a basis for terminating sanctions, as the sanctions orders may
be enforced as a money judgment. (Newland,
supra, 40 Cal.App.4th at p. 615.)
But it may be considered, along with other evidence of misuses of the
discovery process, in determining an appropriate sanction for misconduct.
Plaintiff’s other violation of a court order (the failure
to produce documents in accordance with his statement of compliance) is also a
serious matter. He violated his
obligations under the Civil Discovery Act and then compounded that violation by
failing to comply with a court order.
Plaintiff’s conduct also shows that the imposition of monetary
sanctions have not been sufficient to bring him into compliance with his
obligations under the Civil Discovery Act.
For terminating sanctions, however, 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. Defendant has not, on this record at this
time, made such a showing. Of course,
even one violation of a court order is one too many, but 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, including lesser nonmonetary 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 would create such a windfall for Defendant.
Accordingly,
the Defendant’s request for terminating sanctions is DENIED.
The
denial as to terminating sanctions is without prejudice to Defendant in seeking
other nonmonetary sanctions or seeking a terminating sanction at a later stage
of the proceedings, based on a further showing of misuse of the discovery
process.
The only
lesser sanction Defendant seeks in this motion is monetary sanctions. That request is DENIED, as notice is not
properly provided: the notice of motion states that monetary sanctions are
sought “against Defendant and their counsel of record,” and thus fails to put
Plaintiff on notice that Defendant is seeking monetary sanctions against him.
Conclusion
The Court DENIES Defendant’s motion.
Moving
Party is ordered to give notice.