Judge: Steven A. Ellis, Case: 22STCV32280, Date: 2023-12-21 Tentative Ruling

Case Number: 22STCV32280    Hearing Date: March 12, 2024    Dept: 29

Motion for Terminating Sanctions filed by Defendant Food 4 Less of California, Inc.

Tentative

The motion for terminating sanctions is denied.

The request for monetary sanctions is granted in part.

Background

On October 3, 2022, Ana Maria Vasquez ("Plaintiff") filed suit against Food 4 Less of California, Inc dba Food 4 Less, The Kroger Co., and DOES 1 through 50, alleging the causes of action of Negligence and Premises Liability from a slip and fall occurring on November 3, 2020. 

On February 5, 2024, Defendant filed this motion for terminating sanctions, and monetary sanctions. Plaintiff filed her opposition on February 23, 2024. Defendant filed its reply on February 29, 2024.

Legal Standard

When a party “fails to obey an order compelling further response to interrogatories, 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).)

When a party “fails to obey an order compelling further response [to a request 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., § 2031.310, subd. (i).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030 provides that, “[t]o 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 … sanctions against anyone engaging in conduct that is a misuse of the discovery process,” including monetary sanctions, an issue sanction, an evidence sanction, and a terminating sanction.  (Code Civ. Proc., § 2023.030, subds. (a)-(d).)  A “misuse of the discovery process” includes (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.)  An order for monetary sanctions is enforceable as a money judgment under the Enforcement of Judgments Law, Code of Civil Procedure sections 680.010, et seq.  (Ibid.) 

Discussion

On January 15, 2023, Defendant Food 4 Less of California, Inc dba Food 4 Less (“Defendant”) served Plaintiff with discovery, including Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Production of Documents (Set One) and Requests for Admission (Set One).  (Dabiri Decl., ¶ 5.)  Defendant filed motions to compel, which were granted on December 21, 2023. (Id., ¶ 7, 9.) Defendant served notice of ruling. (Exh. A.) Plaintiff did not provide responses within the time period ordered by the Court. (Id., ¶ 10.)

Plaintiff filed an opposition on February 23, 2024.  Attached to the opposition are Plaintiff’s responses to the form interrogatories, special interrogatories, and requests for production, all of which were served between February 13 and 19, 2024.  (Azizi Decl., ¶¶ 4-6; Exhs. A-C.)

On this record, the Court denies the request for terminating sanctions.  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 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.

The Court grants in part Defendant’s request for monetary sanctions.  This motion was brought to enforce the Court’s order, and it is not clear that Plaintiff would have brought herself into compliance with her obligations under the Court’s order and the Civil Discovery Act in the absence of this motion.  The Court sets sanctions in the requested amount of $820, calculated based on four hours of attorney time, multiplied by counsel’s reasonable billing rate of $190 per hour, plus a filing fee.  (Dabiri Decl., ¶ 11.)

Sanctions are awarded against Plaintiff only.  Defendant’s request for sanctions in the notice of motion and motion against “anyone opposing the herein motion” is not a sufficient basis to put counsel of record (who could easily have been named) of the request for sanctions against him.

Conclusion

Defendant’s motion for terminating sanctions is DENIED.

Defendant’s request for monetary sanctions is GRANTED in part.

The Court ORDERS Plaintiff to pay monetary sanctions under the Civil Discovery Act to Defendant in the amount of $820.00 within 30 days of notice.

Moving Party is ordered to give notice.