Judge Teresa A. Beaudet, Case Number: 23STCV19512, Date: 2024-12-04 Tentative Ruling

Plaintiff Immigrant Rights Defense Council, LLC (“Plaintiff”) filed this action on August 15, 2023 against Defendant Angelica Cendejas (“Defendant”). The Complaint alleges one cause of action for violation of the Immigration Consultant Act.

Plaintiff now moves “for terminating sanctions in the form of striking the answer of Defendant and rendering a judgment by default against Defendant...” Plaintiff also moves for monetary sanctions against Defendant. Defendant opposes.

Misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary, evidentiary, issue, and terminating sanctions. (Code Civ. Proc., § 2023.030.) “The court may impose a terminating sanction by one of the following orders: (1)¿An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (2)¿An order staying further proceedings by that party until an order for discovery is obeyed. (3)¿An order dismissing the action, or any part of the action, of that party. (4)¿An order rendering a judgment by default against that party.” (Code Civ. Proc., § 2023.030, subd. (d).)

Plaintiff states that the instant motion is “made on the grounds that Defendant did not comply with this Court’s March 6, 2024 and July 10, 2024 orders.” (Notice of Motion at p. 1:26-27.) In his declaration in support of the motion, Plaintiff’s counsel states that “[o]n August 28, 2023, Plaintiff served the Request for Production of Documents, Set One, Form Interrogatories, Set One, and Request for Admissions, Set One on the Defendant…Defendant did not respond timely to the discovery and Plaintiff brought motions to compel initial responses and a motion to deem admitted…The motions were subsequently continued to allow for the parties to attend an informal discovery conference on March 6, 2024.” (Medvei Decl., ¶ 4.)

On March 6, 2024, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s March 6, 2024 minute order provides, inter alia, that “[t]he parties attended the Informal Discovery Conference. The Parties agreed and the Court ordered as follows: On or before May 6, 2024, Defendant will serve Plaintiff with verified responses without objection to Plaintiff’s first set of requests for production, requests for admissions and form interrogatories and produce any responsive documents.” Plaintiff’s counsel states that “[a]lthough following the order, Defendant responded, the response to No. 5 was asserted as inadequate under Code of Civil Procedure section 2031.230, and Defendant did not ‘produce any responsive documents’ as to Nos. 1, 2, 6 and 7. Likewise, the responses to Form Interrogatory no. 17.1 was asserted as defective.” (Medvei Decl., ¶ 5.) Plaintiff’s counsel states that “[a]fter attempts to meet and confer with Defendant’s counsel, on May 14, 2024, Plaintiff set an informal discovery conference for July 10, 2024.” (Medvei Decl., ¶ 5.)

On July 10, 2024, the parties participated in another IDC. The Court’s July 10, 2024 minute order provides, inter alia, as follows:

“The parties attended the Informal Discovery Conference. The Parties agreed and the Court ordered as follows: Defendant Cendejas needs more time to produce the documents ordered to be produced on March 6, 2024. Defendant Cendejas is now ordered to produce on or before August 7, 2024 the documents identified in Plaintiff’s Informal Discovery Conference Statement numbers 1 through 7. Defendant will either mail or email the documents to Plaintiff’s Counsel. On or before August 7, 2024, Defendant Cendejas will supplement her response to the Request for Production number 5 to state that she does not have any responsive documents and no such documents ever existed. On or before August 7, 2024, Defendant Cendejas will supplement her response to Form Interrogatory number 17.1, to explain how she has complied with the subject statute and to identify documents that show her compliance.”

In his September 5, 2024 declaration in support of the instant motion, Plaintiff’s counsel states that “[a]s of the date of this declaration, Defendant has not produced any documents or further responses post the July 10, 2024 order.” (Medvei Decl., ¶ 7.)

Plaintiff argues that “[t]here have been ‘three strikes’ by the Defendant in connection with providing code-compliant responses and documents, the initial complete lack of responses, the non-compliance following the March 6, 2024 order, and non-compliance following the July 10, 2024 order…” (Mot. at p. 6:1-3.) Plaintiff asserts that its “counsel is unable to complete discovery and prepare the matter for trial and is therefore completely prejudiced by the Defendant’s refusal to comply with the Court’s orders and meaningfully comply with discovery. Therefore, terminating sanctions are warranted.” (Mot. at pp. 5:24-6:1)

The Court notes that “¿the sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.¿” (¿Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106¿.) “¿A decision to order terminating sanctions should not be made lightly. But where a violation is 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.”¿ (¿Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280¿.)

As discussed, the Court issued a minute order on March 6, 2024 ordering Defendant to serve verified responses to Plaintiff’s subject discovery requests and to and produce any responsive documents. In addition, as discussed, on July 10, 2024 the Court issued a minute order ordering Defendant to produce certain documents and to supplement certain discovery responses. Plaintiff provides evidence that Defendant did not comply with the Court’s orders. (Medvei Decl., ¶¶ 5, 7.) Defendant filed an opposition to Plaintiff’s instant motion. However, in the opposition, Plaintiff does not address or oppose Defendant’s request for terminating sanctions. Defendant does not provide any argument or evidence demonstrating that she complied with the Court’s March 6, 2024 and July 10, 2024 Orders. Defendant does not dispute that she “has not produced any documents or further responses post the July 10, 2024 order.” (Medvei Decl., ¶ 7.)

In instances where “¿the record is replete with instances of delay and failure to comply with a court order, dismissal may be proper.¿” (¿Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489 [disapproved on other grounds]¿.) This is particularly true where, as here, Defendant does not oppose the instant motion for terminating sanctions. (See Ibid. [“[A]ppellants had ample opportunity to present their arguments and excuses to the trial court. Instead, they failed to file opposition to the motion to compel or the dismissal motion, leading the trial court and us to presume they had no meritorious arguments.”].) The Court finds that Defendant’s discovery abuse demonstrates that less severe sanctions will not produce compliance with the discovery rules. Accordingly, terminating sanctions are appropriate.

Pursuant to Code of Civil Procedure section 2023.030, subdivision (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct…If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

As set forth above, Plaintiff’s counsel indicates that “Defendant has not produced any documents or further responses post the July 10, 2024 order.” (Medvei Decl., ¶ 7.) Plaintiff’s counsel also asserts that Defendant did not fully comply with the Court’s March 6, 2024 order. (Medvei Decl., ¶ 5.) This is not disputed by Defendant in the opposition. The Court finds that Plaintiff has demonstrated that Defendant engaged in a “misuse of the discovery process” such that monetary sanctions are warranted. (Code Civ. Proc., §§ 2023.010, 2023.030.) The Court does not find that Defendant has shown that she acted with substantial justification or that other circumstances make the imposition of a monetary sanction unjust.

In the opposition, Defendant states that she “opposes Plaintiff’s request for attorney fees.” (Opp’n at p. 1:16.) Defendant cites to Trope v. Katz (1995) 11 Cal.4th 274, 277, where the California Supreme Court noted that “[i]n this appeal we consider whether an attorney who chooses to litigate in propria persona rather than retain another attorney to represent him in an action to enforce a contract containing an attorney fee provision can nevertheless recover ‘reasonable attorney’s fees’ under Civil Code section 1717 (hereafter section 1717) as compensation for the time and effort expended and the professional business opportunities lost as a result.” The California Supreme Court concluded that “such an attorney litigant cannot recover such fees under section 1717…Were we to construe the statute otherwise, we would in effect create two separate classes of pro se litigants--those who are attorneys and those who are not--and grant different rights and remedies to each. We find no support for such disparate treatment either in the language of section 1717, in the legislative policy underlying it, or in fairness and logic.” (Ibid.)

Defendant argues that “here, Plaintiff is both the client and the attorney,” such that attorney’s fees should not be awarded. (Opp’n at p. 1:23-24.) As set forth above, the Court sustains Plaintiff’s evidentiary objections to Defendant’s declaration in support of the opposition. The Court does not find that Defendant has presented competent evidence that Plaintiff “Immigrant Rights Defense Council, LLC” is “both the client and the attorney” in this action. (Opp’n at p. 1:23-24.) In addition, Plaintiff’s counsel submits a declaration in connection with the reply indicating that “I have no ownership of the Plaintiff or its parent company, IRDC Holdings, LLC, or its former parent company, IRDC Holdings, Inc. Neither does my law corporation, Medvei Law Group, APC.” (Medvei Reply Decl., ¶ 4.)

In his declaration in support of the instant motion, Plaintiff’s counsel states that “[i]n connection with bringing this motion I engaged in the following tasks: 1) I drafted this motion on September 5, 2024, which took 1.5 hours; 2) I anticipate spending 4 hours drafting a reply brief to the opposition, if any; 3) In the event that the tentative is not submitted to, I anticipate spending 1 hour appearing at the hearing via LA Court Connect…Therefore, I anticipate incurring a total of 6.5 hours in connection with this motion, for total anticipated attorney’s fees of $4,875. In addition, I incurred a $60 filing fee for the motion. Therefore, the total sanctions being sought on the motion is $4,935.” (Medvei Decl., ¶¶ 11, 8, p. 9.) Plaintiff’s counsel requests an hourly rate of $750/hr. (Medvei Decl., ¶ 10.) In the opposition, Defendant does not challenge

Plaintiff’s counsel’s requested hourly rate or the amount of monetary sanctions. The Court finds that the requested $4,935.00 in monetary sanctions is reasonable.

Based on the foregoing, Plaintiff’s motion for terminating sanctions is granted. Defendant’s Answer to the Complaint is stricken.[1]

In addition, Plaintiff’s motion for monetary sanctions is granted. Defendant is ordered to pay monetary sanctions in the amount of $4,935.00 to Plaintiff within 30 days of the date of this Order.¿

[1]As set forth above, “[t]he court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process…” (Code Civ. Proc., § 2023.030, subd. (d)(1).)

IMMIGRANT RIGHTS DEFENSE COUNCIL, LLC, Plaintiff, vs. ANGELICA CENDEJAS, et al., Defendants.	Case No.:	23STCV19512
	Hearing Date:	December 4, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: MOTION FOR TERMINATING AND MONETARY SANCTIONS

Superior Court of California

County of Los Angeles

Department 50