Judge Steven A. Ellis, Case Number: 23STCV17944, Date: 2024-12-19 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV17944, Date: 2024-12-19 Tentative Ruling

Case Number: 23STCV17944 Hearing Date: December 19, 2024 Dept: 29

Chen v. Nailington Corp.

23STCV17944
Plaintiff’s Motion for Sanctions

Tentative

The motion is granted in part and denied in part.

Background

On July 31, 2023, Sijia Chen (“Plaintiff”) filed a complaint against Nailington Corp., Doe 1 Cosmetologists and Does 2 to 20 for general negligence arising out of chemical burns and abrasions sustained during a pedicure on November 2, 2022.

On November 20, 2023, Nailington Corp. (“Defendant”) filed an answer.

On November 15, 2024, Plaintiff filed this motion for terminating sanctions, issue sanctions, evidence sanctions, and/or monetary sanctions.

No opposition has been filed.

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.)

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

On June 12, 2024, the Court granted Plaintiff’s discovery motions and ordered Defendant to respond to Plaintiff’s form interrogatories, special interrogatories, and requests for production within 45 days of notice. Plaintiff gave notice on June 18, 2024.

Defendant did not comply with the Court’s order. (Rosenberg Decl., ¶ 5.)

Plaintiff now seeks terminating sanctions for Defendant’s failure to follow the Court’s order and failure to provide code-compliant, verified responses to written discovery.

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. Plaintiff 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 Plaintiff.

Second, Plaintiff requests, as issue sanctions, that the Court find and declare that Defendant was negligent toward Plaintiff as alleged in the complaint, and that Plaintiff sustained injuries as the proximate result of Defendant’s negligence. The Court finds that these requested issue sanctions would also provide a windfall to Plaintiff.

Third, Plaintiff requests evidentiary sanctions establishing that (1) Defendant has no facts to supports its denial of negligence or any affirmative defense, and (2) Defendant has no facts to support that Plaintiff’s injuries were caused by any other person or party other than Defendant and its agents/employees. These requests are granted in part.

Defendant has engaged in serious discovery abuse. Defendant has failed to comply with its obligations under the Civil Discovery Act to respond to discovery propounded more than one year ago. Defendant has failed to comply with a court order requiring it to respond to the discovery by early August 2024 – more than four months ago. Defendant’s misuse of the discovery process has caused substantial prejudice to Plaintiff, as trial is scheduled to begin in approximately five weeks. Serious sanctions are warranted for this serious misconduct by Defendant

As an evidence sanction, the Court rules as follows: Defendant is precluded from presenting evidence, at or before trial: (1) to support any of the affirmative defenses set forth in its Answer or (2) to support any contention that any of Plaintiff’s injuries were caused by the negligent or otherwise wrongful conduct of any third party.

In addition, the Court grants in part Plaintiff’s request for monetary sanctions, as Defendant’s misuse of the discovery process has caused Plaintiff to incur unnecessary costs, including those associated with this motion.

The Court sets monetary sanctions in the amount of $1,310, calculated based on 2.5 hours of attorney time, multiplied by counsel’s reasonable billing rate of $500 per hour, plus a $60 filing fee. (See Rosenberg Decl., ¶¶ 7-8.)

Conclusion

The Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion.

The Court DENIES the requests for terminating and issue sanctions.

The Court GRANTS IN PART the request for evidence sanctions.

The Court ORDERS that Defendant is PRECLUDED from presenting evidence, at or before trial: (1) to support any of the affirmative defenses set forth in its Answer or (2) to support any contention that any of Plaintiff’s injuries were caused by the negligent or otherwise wrongful conduct of any third party.

The Court GRANTS IN PART the request for monetary sanctions.

The Court ORDERS Defendant Nailington Corp. and its attorney of record Kevin A. Gordon, Esq., jointly and severally, to pay monetary sanctions under the Civil Discovery Act in the amount of $1,310 to Plaintiff (through counsel) within 30 days of notice.

Moving Party is ordered to give notice.