Judge: Theresa M. Traber, Case: 21STCV42496, Date: 2023-03-28 Tentative Ruling

Case Number: 21STCV42496    Hearing Date: March 28, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 28, 2023          TRIAL DATE: April 4, 2023

CASE:                         Creditor’s Adjustment Bureau, Inc. v. Chang Rae Jo

CASE NO.:                 21STCV42496           

MOTION FOR TERMINATING AND MONETARY SANCTIONS

MOVING PARTY:               Plaintiff Creditor’s Adjustment Bureau, Inc.

RESPONDING PARTY(S): No response on eCourt as of March 24, 2023

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract that was filed on November 17, 2021. Plaintiff alleges that Defendant has failed to pay insurance premiums in association with a set of worker’s compensation insurance policies.

Plaintiff moves for terminating sanctions for failure to comply with the Court’s previous orders on Plaintiff’s Motions to Compel Responses, and for monetary sanctions.

TENTATIVE RULING:

Plaintiff’s Motion for Terminating Sanctions is GRANTED and Defendant’s answer is stricken unless proof is presented to the Court on the date this matter is to be heard that Defendant has served code-compliant discovery responses on Plaintiff without objections.

Plaintiff’s request for further sanctions is DENIED.

DISCUSSION:

Plaintiff moves for terminating sanctions for failure to comply with the Court’s previous order on Plaintiff’s Motions to Compel Responses, and for monetary sanctions.

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Terminating Sanctions

Plaintiff requests terminating sanctions for Defendants’ failure to provide verified discovery responses without objections in the form of striking the Defendants’ answer.

The Court has the authority to impose sanctions against a party that engages in any misuse of the discovery process (Code Civ. Proc. § 2023.030), including “[f]ailing to respond or to submit to an authorized method of discovery.” (Code Civ. Proc. §§ 2023.010(d).) A party engaging in this conduct may be subject to sanctions including monetary sanctions (Code Civ Proc. § 2023.030(a)), evidence sanctions (Code Civ. Proc. § 2023.030(c)) or terminating sanctions. (Code Civ. Proc. § 2023.030(d).)  “[T]rial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process.” (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved of on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493.) Sanctions are generally imposed in an incremental approach. (Id.) Generally, the appropriate sanctions when a party repeatedly and willfully fails to provide evidence to the opposing party as required by the discovery rules is preclusion of that evidence from the trial. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 390, disapproved of on other grounds by Brown v. USA Taekwondo (2021) 11 Cal.5th 204.)

In considering a motion for terminating sanctions, the Court is to attempt to “tailor the sanction to the harm caused by the withheld discovery.” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-1619.) 

[T]he question before this court is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose. [Citation.] Moreover, imposition of a lesser sanction would have permitted [defendants] to benefit from their stalling tactics. [Citation.] The trial court did not abuse its discretion by tailoring the sanction to the particular abuse.

(Id. at 1620.)

            Moreover, in deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

            Plaintiff served its Requests for Production and Special Interrogatories by mail on February 28, 2022. (Declaration of Kenneth J. Freed ISO Motions to Compel Responses. ¶ 3, Exh. 1.) No responses were received. Plaintiff moved to compel responses, and, on September 21, 2022, the Court granted Plaintiff’s motions directing Defendant to provide answers and ordered Defendant to pay sanctions in the amount of $1,347.84 within 20 days of the date of that order. (Declaration of Joseph Jyoo ISO Mot. ¶ 3 Exh. 1.) Defendant failed to do so. (Id.) Plaintiff subsequently moved for terminating sanctions on November 18, 2022. At the January 18, 2023 hearing on that motion, the Court declined to issue terminating sanctions on the grounds that the motion was premature. (January 18, 2023 Minute Order.) However, the Court ordered Defendant to serve of verified, code-compliant responses to the outstanding discovery, to pay the outstanding sanctions, and to pay an additional $811.65 in sanctions within 30 days of that order. (Id.)  To date, Defendant has not complied with any of the Court’s orders. (Declaration of Kenneth J. Freed ISO Second Motion for Terminating Sanctions ¶¶ 7-9.)

            Defendant did not appear to defend against the previous motion for terminating sanctions, and has likewise failed to oppose this motion. Defendant’s failure to even make further appearances in this action, coupled with the multiple failures to comply with court orders documented above, leaves the Court with no alternative but to conclude that Defendant’s failure to comply with Court orders was willful. Unless proof is presented to the Court on the date that this matter is set to be heard that Defendant has served code-compliant, objection-free discovery responses on Plaintiff, the Court finds that the ultimate sanction is warranted in this instance.

Monetary Sanctions

            Plaintiff also requests additional monetary sanctions in the amount of $1,872.75 for attorney’s fees and expenses in bringing this motion.

The Court may impose monetary sanctions under section 2023.010 when a party fails to comply with a court’s discovery order. (Code Civ Proc. §§ 2030.290(c).) Monetary sanctions are authorized under section 2023.010 for misuses of the discovery process, including failing to submit to an authorized method of discovery and failure to respond to a court order.

            Plaintiff’s request for monetary sanctions is DENIED. Terminating sanctions are the ultimate sanction, and therefore it would be inappropriate to award monetary sanctions in addition to striking Defendant’s answer.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Terminating Sanctions is GRANTED and Defendant’s answer is stricken unless proof is presented to the Court on the date this matter is to be heard that Defendant has served code-compliant discovery responses on Plaintiff without objections.

Plaintiff’s request for further sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 28, 2023                                   ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.