Judge Steven A. Ellis, Case Number: 21STCV31921, Date: 2023-10-11 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV31921, Date: 2023-10-11 Tentative Ruling

Case Number: 21STCV31921 Hearing Date: January 17, 2024 Dept: 29

Motion for Terminating Sanctions filed by Defendants Aremy L. Villatoro-Lopez.

Tentative

The motion is DENIED.

Background

On August 27, 2021, Plaintiff Sharon R. Carter (“Plaintiff”) filed a complaint against Defendants Aremy L. Villatoro-Lopez, Damaris Lopez-Tul, and Does 1 to 100, alleging two causes of action for: (1) Motor Vehicle Negligence; and (2) General Negligence.

On February 17, 2023, Defendants Aremy L. Villatoro-Lopez (“Defendant”) and Damaris Lopez-Tul filed their answer to the complaint.

On October 11 and 12, 2023, the Court granted Defendant’s motions to compel Plaintiff to respond to Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production (Set One) within 30 days of notice. Defendant served Plaintiff with the Notice of Rulings on October 17, 2023.

Plaintiff did not comply with the Court’s orders. (Mackey Decl., ¶ 4.)

On December 20, 2023, 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: ... (b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (d) The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (2) An order staying further proceedings by that party until an order for discovery is obeyed. (3) An order dismissing the action, or any part of the action, of that party. (4) An order rendering a judgment by default against that party. " (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.)

Discussion

Plaintiff has not complied with the Court’s orders to respond to Defendant’s form interrogatories, special interrogatories, and demand for inspection of documents. (Mackey Decl., ¶ 4.) Based on that failure to comply, Defendant seeks terminating sanctions against Plaintiff.

Plaintiff has engaged in discovery abuse, including the failure to comply with her obligations to respond to discovery under the Civil Discovery Act and the failure to comply with this Court’s Orders of October 11 and 12, 2023. Serious sanctions are warranted. But not, at this time, terminating sanctions. There has not been a showing of a history or pattern of willful abuse or repeated violations.

Defendant does not seek any lesser sanction. Accordingly, the motion 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 abuse.

The Court also notes that 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 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.) Here, the requested terminating sanctions would create a windfall for Defendant.

Conclusion

The Court DENIES Defendants’ motion for a terminating sanction.

Moving party is ordered to give notice.