Judge Steven A. Ellis, Case Number: 22STCV27541, Date: 2023-11-27 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV27541, Date: 2023-11-27 Tentative Ruling

Case Number: 22STCV27541 Hearing Date: February 20, 2024 Dept: 29

Motion to Dismiss the First Amended Complaint and for Monetary Sanctions filed by Defendants Los Angeles Unified School District

Tentative

The motion to dismiss (as a terminating sanction) is denied.

The request for further monetary sanctions is granted.

Background

This case arises out of an incident that occurred on August 16, 2021, in which Plaintiff Roy A. Hemsley (“Plaintiff”), a 13-year old autistic middle school student, was allegedly left unattended and allowed to run or wander five miles from his school campus before being discovered later that day. (Complaint, ¶¶ 20-30.)

On August 24, 2022, Plaintiff filed the Complaint in this action, asserting causes of action for negligent hiring, retention, and supervision; negligence; negligent infliction of emotional distress; and intentional infliction of emotional distress against Defendants Los Angeles Unified School District (“LAUSD”), County of Los Angeles (“County”), Inclusive Education and Community Partnership, Inc. (“IECP”), Lara Ruby, Wendy De La O, Alvin Walker, Daryl Davis, and Does 1 through 100. On October 21, 2022, the Court, at the request of Plaintiff, dismissed all claims against County without prejudice.

On February 8, 2023, the Court sustained in part (with leave to amend in part) and overruled in part a demurrer and granted (with leave to amend in part) a motion to strike.

On March 8, 2023, Plaintiff filed the First Amended Complaint (the “FAC”), asserting causes of action for negligent hiring, retention, and supervision; negligence; and intentional infliction of emotional distress against the same defendants (except for County).

On May 15, 2023, the Court sustained (with leave to amend) a demurrer to the negligent hiring, retention, and supervision and the intentional infliction of emotional distress causes of action and granted (with leave to amend in part) a motion to strike. Plaintiff did not amend further.

On July 24, 2023, Defendants LAUSD, Walker, and Davis filed their Answer to the FAC. On the same day, LAUSD filed a Cross-Complaint against IECP and Roes 1 through 50.

On July 26, 2023, Defendants IECP and De La O filed their Answer to the FAC. On the same day, IECP also filed a Cross-Complaint against LAUSD and Moes 1 through 50, and an Answer to LAUSD’s Cross-Complaint.

On August 4, 2023, LAUSD filed an answer to IECP’s Cross-Complaint.

There have been a number of discovery issues that have come before the Court. As is particularly relevant here, in April 2023, LAUSD served Plaintiff with discovery, including Special Interrogatories and Requests for Production. Plaintiff served responses that were not code complaint, and LAUSD moved to compel further responses. The Court heard the motions, took the matter under submission, and issued a ruling granting the motions on January 2, 2024. The Court ordered Plaintiff to provide responses to four interrogatories and to comply with 19 requests for production of documents within 10 days of notice. The Clerk gave notice by mail on January 2.

Fourteen days later, on January 16, 2024, LAUSD filed this motion to dismiss the FAC as a terminating sanction against Plaintiff. LAUSD also seeks monetary sanctions.

No opposition has been filed.

On February 14, 2024, IECP filed a joinder in the motion.

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

As an initial matte, the Court denies IECP’s joinder in the requests for relief sought by LAUSD. IECP’s joinder is untimely. Moreover, and independently, IECP has not shown why it should obtain relief for Plaintiff’s failure to respond to discovery propounded by a different defendant.

Turning to LAUSD’s motion, on January 2, 2024, the Court ordered Plaintiff to provide code compliant, verified, written responses and documents to LAUSD within 10 days. Plaintiff did not do so. (Mullane Decl., ¶ 3.) As a result, LAUDS moves for terminating sanctions and further monetary sanctions.

Plaintiff’s failure in providing further discovery responses is a substantial misuse of the discovery process. 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. LAUSD 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 LAUSD.

Accordingly, the motion for a terminating sanction is DENIED.

LAUSD does not seek an issue or evidence sanction.

LAUSD’s request for a further monetary sanction is GRANTED in part. LAUSD 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 $540, calculated based on three hours of attorney time multiplied by counsel’s reasonable hourly rate of $180.00 per hour. (See Mullane Decl., ¶ 4.)

The denial as to terminating sanctions is without prejudice to any 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

The Court DENIES IECP’s requests for relief.

The Court DENIES LAUSD’s motion for a terminating sanction.

The Court GRANTS LAUSD’s request for a further monetary sanctions.

The Court ORDERS Plaintiff and counsel of record DRE Law, APC, jointly and severally, to pay further monetary sanctions under the Civil Discovery Act to LAUSD in the amount of $540 within 30 days of notice.

Defendant LAUSD to give notice.