Judge: Steven A. Ellis, Case: 23STCV23227, Date: 2024-09-12 Tentative Ruling

Case Number: 23STCV23227    Hearing Date: September 12, 2024    Dept: 29

Jackson v. The Kroger Co.
23STCV23227
Defendant’s Motion for Terminating Sanctions

Tentative

The hearing on the motion is continued.

Background

On September 26, 2023, Kameron Jackson (“Plaintiff”) filed a complaint against The Kroger Co. dba Ralph’s and Does 1 through 25 for premises liability and general negligence arising out of slip and fall on September 5, 2022.

On October 27, 2023, Ralphs Grocery Company dba Ralphs (erroneously sued as The Kroger Co. dba Ralph’s) (“Defendant”) filed an answer.

On May 29, 2024, the Court granted Defendant’s discovery motions and ordered Plaintiff to serve verified responses to Defendant’s form interrogatories, special interrogatories, and requests for production.  The Court also ordered Plaintiff to pay monetary sanctions.  Plaintiff did not provide the responses or pay the sanctions.  (Yeremian Decl., ¶ 8.)

On June 24, 2024, this case was transferred to Department 29.

On July 8, 2024, Defendant filed this motion for terminating sanctions, evidentiary sanctions, and/or further 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.)

Discussion

This motion was filed on July 8, 2024, and notice was provided that the hearing would proceed on September 12 in Department 31.  This matter, however, has been transferred to Department 29, and the hearing will proceed in Department 29.

The Court is concerned that notice has not been properly given to Plaintiff.  To address that concern, the Court continues the hearing for approximately 21 days and orders Defendant to give notice of the new hearing date, time, and location.

Conclusion

The Court CONTINUES the hearing to October __, 2024, at 1:30 p.m., in Department 29 of the Spring Street Courthouse.

The Court ORDERS Defendant to give notice of the new hearing date, time, and location.