Judge: Steven A. Ellis, Case: 22STCV30667, Date: 2023-09-01 Tentative Ruling
Case Number: 22STCV30667 Hearing Date: January 8, 2024 Dept: 29
Motion for Monetary
Sanctions filed by Defendants Imperfect Foods, Inc. and Jose Antonio Gomez
Gutierrez.
Motion for Issue,
Evidence and Monetary Sanctions filed by Plaintiff Samira Riahi.
Tentative
Defendant
Improper Food’s motion for monetary sanctions is DENIED.
Plaintiff’s motion
for sanctions against Defendants is GRANTED in part and DENIED in part.
Background
This case arises out of an alleged vehicle accident on
September 2, 2021, near the intersection of Santa Monica Boulevard and 16th
Street in Santa Monica, California. On
September 20, 2022, Plaintiff Samira Riahi (“Plaintiff”) filed the Complaint in
this action asserting causes of action for general negligence and motor vehicle
negligence against Defendants Jose Antonio Gomez Gutierrez, Imperfect Foods,
Inc., and Does 1 through 25. Plaintiff
alleges (among other things) that Defendant Gomez Gutierrez drove a vehicle
negligently, causing the accident, while in the course and scope of his agency
or employment with Defendant Imperfect Foods, Inc. Defendants Jose Antonio Gomez Gutierrez and
Imperfect Foods, Inc. (“Defendants”) filed their Answer to the Complaint on
November 4, 2022.
Before the Court are two motions for sanctions
under the Civil Discovery Act.
In the first motion, filed on November 9, 2023, Defendant
Imperfect Foods seeks $3,600 in monetary sanctions. Defendant argues that Plaintiff failed to
appear for a properly noticed independent medical examination (“IME”) and seeks,
as sanctions, $1,500 in a cancellation fee assessed by the examiner and $2,100
in attorney’s fees. Plaintiff filed her opposition
on November 30, and Defendant filed its reply on December 8.
In the second motion, filed on November 30, 2023, Plaintiff
seeks issue, evidentiary, and $3,610 in monetary sanctions against Defendants
for the failure to Defendant Gomez Gutierrez to appear for his deposition, as
ordered. Defendants filed their opposition
on December 18, and Plaintiff filed her reply on December 29.
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." (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.)
The
primary purpose of discovery sanctions is to obtain compliance with the Civil
Discovery Act and the Court’s orders. It is not to create a separate forum for
satellite litigation or gamesmanship disconnected from the Civil Discovery Act.
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.)
Discussion
Defendant’s
Motion
The dispute in the motion of Defendant
Imperfect Foods relates to whether electronic service of the notice of the IME
was proper. The Complaint in this action
identifies one email address: filings@westcoasttriallawyers.com.
Defendants have used that address for service in the past. (Sayaghi Decl., ¶ 7.) The proof of service for Defendant’s notice of
the IME, dated June 11, 2023, and setting the examination for August 17, states
that service was made on that address (and others). (Dayen Decl., Exh. B.) But the proof of service (signed under
penalty of perjury) is inaccurate; the notice was not served on the “filings”
email address. (Sayaghi Decl., ¶¶ 14-17.)
Code of Civil Procedure section 1010.6 provides
for (among other things) electronic service of discovery documents. Subdivision (b)(3) requires the person
effecting service to “confirm the appropriate electronic service address for
the counsel being served,” and subdivision (b)(4) requires electronic service
on any counsel “who provides an electronic service address.” California Rule of Court, rule 2.251(b), (c),
and (g) require parties to provide an electronic address for service and to
file a notice of any change in such address.
Defendant’s motion is DENIED. It appears that Defendant intended to serve Plaintiff
properly but, through an error or oversight, did not do so. Defendant is not entitled to an order
imposing sanctions on Plaintiff for its own error, and the consequences
thereof.
Plaintiff’s request for sanctions in its
opposition is also DENIED. The Court is denying
Defendant’s motion, but Defendant acted with substantial justification,
particularly in light of the service of the notice of the IME on multiple email
addresses in the firm of Plaintiff’s counsel.
Plaintiff’s Motion
Plaintiff seeks monetary sanctions, as well
as issue and evidentiary sanctions, against both Defendants based on the
failure of Defendant Gomez Gutierrez to comply with the Court’s order of
September 1, 2023, requiring him to attend his deposition within 60 days.
Defendants’ counsel has represented that they
cannot locate Mr. Gomez Gutierrez. In
email correspondence, Defendants’ counsel has stated that he “is not going to
appear for his deposition no matter what date you set it for.” (Sayaghi Decl., ¶ 10 & Exh. 5.)
As a threshold matter, certain arguments require
only a brief discussion. First, Defendants’
argument that Mr. Gomez Gutierrez was never served does not have any impact on
this motion. Mr. Gomez Gutierrez filed
an Answer to the Complaint in this action on November 4, 2022; in doing so, he appeared
before the Court, submitted to its jurisdiction, and waived any objection to
service.
Second, there is not a sufficient showing on
this record to impose any sanction (monetary or nonmonetary) against Defendant
Imperfect Foods for the discovery misconduct of its co-defendant Mr. Gomez
Gutierrez. Nor is there any basis on
this record to impose sanctions against counsel.
As to the request for sanctions against Mr.
Gomez Gutierrez, he has an obligation under the Civil Discovery Act to attend
his deposition and testify. To date, he
has refused to do so, and he has violated a Court order requiring him to do
so. The issuance of monetary sanctions
has not, to date, been sufficient to obtain his compliance with his obligations
under the Civil Discovery Act and this Court’s Order. More serious sanctions are warranted.
The Court will issue a nonmonetary sanction
that is commensurate with Mr. Gomez Gutierrez’s discovery misconduct and is
appropriate to protect the interest of Plaintiff, who is entitled to but has
been denied discovery. (Doppes v.
Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) After considering all of the circumstances,
and the arguments from both sides, the Court GRANTS Plaintiff’s request for an
EVIDENCE SANCTION that PRECLUDES Mr. Gomez Gutierrez from testifying at trial.
Plaintiff’s requests for other non-monetary sanctions
are DENIED.
Plaintiff’s request for additional monetary
sanctions against Mr. Gomez Gutierrez is GRANTED in part. He has engaged, and continues to engage, in
discovery abuse, without substantial justification. Given the relatively straightforward nature
of this motion, the Court sets sanctions in the amount of $2,035, calculated based
on 3.5 hours of attorney time multiplied by counsel’s reasonable billing rate
of $450 per hour, plus the $400 court reporter cancellation fee, plus the $60
filing fee. (See Sayaghi Decl., ¶ 12.)
Conclusion
Defendant
Improper Food’s request for monetary sanctions is DENIED.
Plaintiff’s
request for sanctions against Defendants is GRANTED in part and DENIED in part.
Based upon the showing of discovery abuse and
violation of a court order, the Court GRANTS Plaintiff’s request for an
EVIDENCE SANCTION: Defendant Gomez Gutierrez is PRECLUDED from testifying at
trial.
The Court also GRANTS in part Plaintiff’s
request for additional monetary sanctions.
Defendant Gomez Gutierrez is
ORDERED to pay monetary sanctions to Plaintiff under the Civil Discovery Act in
the amount of $2,035 within 30 days of notice of this order.
Plaintiff’s other requests for sanctions are
DENIED.
Plaintiff is to
give notice as to both motions.