Judge: Steven A. Ellis, Case: 21STCV27182, Date: 2023-12-06 Tentative Ruling

Case Number: 21STCV27182    Hearing Date: February 13, 2024    Dept: 29

Motion for Terminating Sanctions filed by Defendant Irene Kilcullen.

Tentative

The motion is denied.

Background

On July 23, 2021, Plaintiff Lena Foster (“Plaintiff”) filed her complaint against Defendant Irene Kilcullen (“Defendant”) and Does 1 through 50, for negligence cause of action arising from auto accident occurring on August 1, 2019.

On December 6, 2023, the Court ordered Plaintiff to serve verified responses to Form Interrogatories, Set One, Special Interrogatories, Set One and Demand for Production of Documents, Set One without objection within 30 days. (Cloud Decl., ¶ 2.)

On January 17, 2024, Defendant filed this Motion for Terminating Sanctions. No opposition has been filed.

Legal Standard

“To 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 the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: ... (d) The court may impose a terminating sanction …."  (Code Civ. Proc., § 2023.030.) “Misuses 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."  (Code Civ. Proc., § 2023.010.)

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.)

Discussion

On December 6, 2023, the Court ordered Plaintiff to serve verified responses to Form Interrogatories, Set One, Special Interrogatories, Set One and Demand for Production of Documents, Set One without objection within 30 days. (Cloud Decl., ¶ 2.) Plaintiff was also ordered to pay monetary sanctions of $1,080.00 to Defendant. (Id., ¶ 3.) Defendant served notice of the Court’s order on December 7, 2024. (Exhibit A.) Plaintiff has yet to provide responses. (Cloud Decl., ¶ 5.)

Defendant moves for terminating sanctions against Plaintiff for failing to respond to discovery requests as well as failing to comply with this Court’s order to respond to discovery requests. 

Plaintiff’s failure in providing discovery responses is substantial discovery abuse.  Serious sanctions are warranted for this conduct. 

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.  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 would create such a windfall for Defendant.

Defendant does not seek any lesser sanctions.

Accordingly, the Defendant’s request for terminating sanctions is DENIED.

The denial is without prejudice to Defendant seeking other sanctions or seeking a terminating sanction at a later stage of the proceedings, based on a further showing of misuse of the discovery process.

Conclusion

Defendant’s motion for terminating sanctions is DENIED.

Defendant is ordered to give notice.