Judge Steven A. Ellis, Case Number: 21STCV33629, Date: 2023-09-27 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV33629, Date: 2023-09-27 Tentative Ruling

Case Number: 21STCV33629 Hearing Date: April 5, 2024 Dept: 29

Motion for Terminating Sanctions filed by Defendant Mina George Baskharon.

Tentative

The motion is denied.

Background

This case arises from an motor vehicle accident that allegedly occurred on August 19, 2020. Plaintiff Naser Baharloo (“Plaintiff”) filed the Complaint in this action on September 13, 2021, asserting causes of action for motor vehicle negligence and general negligence against Defendant Mina George Baskharon (“Defendant”), and Does 1 through 10. Defendant filed an Answer on March 22, 2023.

On March 11, 2024, Defendant filed this motion for terminating sanctions. No opposition has been filed.

Legal Standard

When a party fails to obey a court order compelling further responses to interrogatories or requests 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., §§ 2030.300, subd. (e) & 2031.310, subd. (i).)

In Chapter 7 of the Civil Discovery Action, section 2023.030, subdivisions (a)-(d), authorizes monetary sanctions, issue sanctions, evidence sanctions, and terminating sanctions against anyone engaging in conduct that is a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030.) In section 2023.010, a “misuse of the discovery process” is defined 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. (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.)

Discussion

Defendant requests terminating sanctions as Plaintiff has failed to comply with the Court’s order of February 8, 2024, requiring Plaintiff to serve responses to form interrogatories, special interrogatories, and requests for production, and the Court’s orders of February 7 and 8, 2024, for the payment of sanctions.

Plaintiff’s failure to provide discovery responses is a substantial misuse of the discovery process. So is the violation of a court order. Serious sanctions are warranted for this discovery abuse.

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.

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

Defendant’s request for a further monetary sanction is GRANTED. Defendant has shown further misuse of the discovery process by Plaintiff; Plaintiff’s conduct is not substantially justified, and it would not be unjust to impose a further monetary sanction on Plaintiff for this further discovery abuse. The Court sets sanctions in the amount of $817.65, the cost of bringing this motion. (Mittskus Decl., ¶ 12.)

The denial as to terminating sanctions is without prejudice to Defendant in 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

The Court DENIES Defendant’s request for terminating sanctions

The Court GRANTS Defendant’s request for a further monetary sanction.

The Court ORDERS Plaintiff and his attorney of record, Steven Slavitt, Esq., jointly and severally, pay monetary sanctions under the Civil Discovery Act in the amount of $817.65 within 30 days of notice of this order.

Moving Party is ordered to give notice.