Judge: Steven A. Ellis, Case: 21STCV43195, Date: 2023-09-29 Tentative Ruling
Case Number: 21STCV43195 Hearing Date: April 16, 2024 Dept: 29
Motion for Terminating Sanctions filed by Defendant
Jeffrey D. Rawnsley, M.D.
Tentative
The motion is denied.
Background
On November 24, 2021, Plaintiff Autumn
Latour (“Plaintiff”) filed a complaint against Defendants Jeffery D. Rawnsley,
M.D., Daniel Sukat, M.D., and Does 1 through 50 for negligence and medical
malpractice.
On June 21, 2023, Defendant Jeffrey D. Rawnsley, M.D.,
(“Defendant”) served Plaintiff with written discovery. (Wysocky Decl., ¶ 3.) On
October 17, 2023, the Court ordered Plaintiff to serve responses. (Id., ¶ 4.)
Plaintiff did not do so. (Id., ¶ 5.) Defendant moved for terminating, issue,
evidence, and monetary sanctions; on February 5, 2024, the Court denied
Defendant’s motion for terminating or issue sanctions, granted Defendant’s
request for evidentiary sanctions, and ordered Plaintiff to pay monetary
sanctions of $900.00. (Id., ¶¶ 6-7 & Exh. B.)
Plaintiff has not paid the monetary sanctions ordered by
the Court. (Id., ¶ 8.)
On March 14, 2024, Defendant filed this Motion for Terminating Sanctions.
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
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.
Defendant requests terminating sanctions as Plaintiff has
yet to serve verified responses as ordered on October 17, 2023. (Wysocky Decl.,
¶ 4 & Exh. A.) But the Court has already imposed a severe sanction against Plaintiff
for this violation of the Court’s Order and the Civil Discovery Act. (Id., Exh. B.)
All that is new or additional since the Court’s ruling of
February 5 is that Plaintiff has failed to pay $900 in monetary sanctions. The Court takes this violation of a court
order very seriously, but it does not merit a terminating sanction, either
alone or in combination with Plaintiff’s other misconduct. Defendant may enforce the order to pay a
monetary sanction through the execution of judgment laws. (Newland, supra, 40 Cal.App.4th at p.
615.)
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,
particularly given that the only additional violation that was not previously
before the Court is the failure to comply with a court order to pay $900.
Accordingly,
the Defendant’s request for terminating sanctions is DENIED.
Defendant
does not seek a lesser sanction.
Conclusion
Defendant’s
motion for terminating sanctions is DENIED.
Moving
Party is ordered to give notice.