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.