Judge: Steven A. Ellis, Case: 23STCV05347, Date: 2024-08-08 Tentative Ruling
Case Number: 23STCV05347 Hearing Date: August 8, 2024 Dept: 29
Ortiz v. Morales
23STCV05347
Defendant’s Motion for Terminating Sanctions
Tentative
The motion is denied.
Background
On March 10, 2023, Lonnie Marie Ortiz
(“Plaintiff”) filed a complaint against Arquimides Morales (“Defendant”) and
Does 1 through 10 for motor vehicle negligence and general negligence arising
out of an accident occurring on March 11, 2021. Defendant filed an answer on August
7, 2023.
On January 31, 2024, the Court granted
Defendant’s motions to compel and ordered Plaintiff to respond to Defendant’s
form interrogatories, special interrogatories, and requests for production
within 20 days. Notice of ruling was
duly served on Plaintiff’s counsel.
On
February 16, 2024, Plaintiff’s counsel was relieved as counsel.
On March
5, 2024, Defendant mailed a letter directly to Plaintiff and attached the
notice of ruling. (Harn Decl., Exh.
B.) Plaintiff did not provide the
ordered responses. (Id., ¶ 8.)
On June 4, 2024, Defendant
filed this motion for terminating sanctions. No opposition has been filed.
The hearing was
initially scheduled for July 17 and was continued by the Court to August 8.
Legal Standard
When a plaintiff fails to obey an order compelling answers 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 (commencing with Section
2023.010). In lieu of or in addition to,
that sanction, the court may impose a monetary sanction under Chapter 7.” (Code Civ. Proc., § 2030.290, subd. (c).)
When a plaintiff fails to obey an order compelling responses to
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 (commencing
with Section 2023.010). In lieu of or in
addition to, that sanction, the court may impose a monetary sanction under
Chapter 7.” (Code Civ. Proc., §
2031.300, subd. (c).)
In Chapter 7 of the Civil Discovery Act, section 2023.030 provides
for monetary, evidence, issue, and terminating sanctions for any “misuse of the
discovery process,” “[t]o the extent authorized by the chapter governing any
particular discovery method or any other provision of this title.” 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.)
Discussion
As a
preliminary matter, this case was reassigned to Department 29 on June 24, 2024. Until further notice, all motions should identify
Department 29 as the location in which the motion will be heard.
Defendant
seeks terminating sanctions for Plaintiff’s failure to comply with this Court’s
Order and for failure to comply with the requirements of the Civil Discovery
Act. This is a serious misuse of the
discovery response, for which serious sanctions are warranted.
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. 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 as no lesser sanctions have been
pursued.
Defendant does not request lesser sanctions
in this motion.
Accordingly,
the Defendant’s motion for terminating sanctions is DENIED.
The
denial as to terminating sanctions is without prejudice to 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 Defendant’s motion for terminating sanctions.
Moving
Party is ordered to give notice.