Judge: Steven A. Ellis, Case: 21STCV39649, Date: 2024-02-27 Tentative Ruling
Case Number: 21STCV39649 Hearing Date: February 27, 2024 Dept: 29
Motion for Terminating Sanctions filed by Plaintiff Fernando
Sanchez.
Tentative
The motion is denied without prejudice.
Background
This action arises from an alleged vehicle accident on
November 16, 2019, on the Southbound Interstate 5 Freeway in or near Valencia,
California. On October 20, 2021, Plaintiffs Fernando and Hilda Sanchez
(“Plaintiffs”) filed a complaint asserting causes of action for motor vehicle
negligence, general negligence, and loss of consortium against Defendant Ampac
Logistics LLC and Does 1 to 100.
On November 1, 2021,
Plaintiffs amended the complaint to name Rush Truck Leasing, Inc. (“Rush”) as
Doe 1 and Ampak Logistics Inc. as Doe 2. On December 17, 2021, Plaintiff
amended the complaint to name 3Power Logistics Management (“3Power”) as Doe 3.
On January 5, 2022, Rush filed its answer and a
cross-complaint against Ampak Logistics, Inc. On March 9, 2022, 3Power filed
its answer. On October 11 and 12, 2022, Ampak Logistics, LLC (erroneously sued
as Ampak Logistics, Inc. and Ampac Logistics, LLC) (“Ampak”) filed its answer
and a cross-complaint against 3Power. On November 30, 2022, 3Power filed its
answer to Ampak’s cross-complaint.
On February 8 and 10, 2023, at the request of Plaintiffs, the
Court dismissed, with prejudice, Plaintiffs’ claims against Rush and 3Power.
On March 2, 2023, the Court granted the request of Ampak’s
counsel to be relieved as counsel.
Ampak, as a corporate entity, cannot represent itself in pro per. As set forth in the order (and the proof of
service of the order on Ampak), Ampak may be served, however, through Junaid
Sultan at Ampak Logistics, LLC, 4637 West 191st Street in Torrance.
On January 4, 2024, the Court, at the request of Rush, dismissed
with prejudice Rush’s cross-complaint.
On November 6 and 7, 2023, the Court granted the motion of Plaintiff
Fernando Sanchez (“Plaintiff”) to compel Ampak’s responses to Form
Interrogatories, Special Interrogatories, and Request for Production of
Documents. (Quiroga Decl., ¶ 6.) (The
discovery requests, and the motions to compel, were all served while Ampak was
still represented by prior counsel.)
Moving party was ordered to give notice. On November 13, 2023, Plaintiff gave notice
by email; notice to Ampak was given to its former counsel, who had been relieved
months earlier.
On January 26, 2024, Plaintiff filed this motion for
terminating sanctions. Service of the
motion was made electronically.
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
The motion is denied for two
independent procedural reasons.
First, Ampak was never given proper notice of the orders
granting the motions to compel. Notice
was sent on November 10, 2023 to Ampak’s former counsel, who had been relieved eight
months earlier, in March 2023. For this reason
alone, the motion is denied.
Second,
Ampak was not properly served with the motion for terminating sanctions. Plaintiff served Ampak by email only, but
there is no evidence in the record indicating that Ampak consented to email
service (and no mandatory email service rule applies, as Ampak is not a
represented party). (See Code Civ. Proc., § 1010.6, subd. (c)(2); Cal. Rules of
Court, rule 2.251(c)(3)(B).) For this
additional independent reason, the motion is denied.
Moreover, the Court further notes that even if there were
no service issues, it would likely not grant the motion. For terminating sanctions, 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. Plaintiff
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 Plaintiff.
Accordingly,
the Plaintiff’s request for terminating sanctions is DENIED without prejudice.
Conclusion
Plaintiff’s
motion for terminating sanctions is DENIED without prejudice.
Moving
Party is ordered to give notice.