Judge Theresa M. Traber, Case Number: 22STLC09822, Date: 2023-05-22 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STLC09822, Date: 2023-05-22 Tentative Ruling

Case Number: 22STLC09822 Hearing Date: September 15, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 15, 2023 TRIAL DATE: NOT SET

CASE: Stanford Neighborhood Association LLC v. Miranda Logistics Enterprise, Inc.

CASE NO.: 22STLC09822

MOTION FOR TERMINATING SANCTIONS, OR, IN THE ALTERNATIVE, ISSUE OR EVIDENTIARY SANCTIONS AND MONETARY SANCTIONS

MOVING PARTY: Defendants/Cross-Complainants Miranda Logistics Enterprise, Inc., Grit & Gravel Inc, and United Pacific Waste

RESPONDING PARTY(S): Cross-Defendant Kareem Corp. and Plaintiff Stanford Neighborhood Association LLC

CASE HISTORY:

· 11/24/20: Complaint filed

· 02/09/21: Cross-Complaint filed as to Stanford Neighborhood Association, LLC; DGT Holdings LLC, and LA Catering Truck MFG, Inc.

· 02/26/21: First Amended Complaint filed.

· 04/09/21: Cross-Complaint filed as to Grit & Gravel Inc. and Miranda Logistics Enterprise, Inc.

· 07/01/21: Second Amended Complaint filed.

· 07/21/21: First Amended Cross Complaint filed as to Stanford Neighborhood Association, LLC; DGT Holdings LLC, and LA Catering Truck MFG, Inc.

· 08/09/21: First Amended Cross-Complaint filed as to Grit & Gravel Inc. and Miranda Logistics Enterprise, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for trespass, nuisance, negligence, and intentional interference with contract. Plaintiff alleges that Defendants have failed to comply with local zoning ordinances pertaining to a building materials salvage yard which they operate.

Defendants move for terminating sanctions, or in the alternative, issue and evidentiary sanctions against Cross-Defendant Kareem Corp. and Plaintiff, in its capacity as Cross-Defendant’s assignee, and for monetary sanctions.

TENTATIVE RULING:

Defendants’ Motion for Terminating Sanctions, or, in the alternative, Evidentiary or Issue Sanctions is GRANTED IN PART.

Cross-Defendant is ordered to provide verified, code-compliant responses without objections that designate which of the documents identified in their most recent supplemental responses are responsive to each request for production, indicate from which entity those documents are produced, and to identify those documents by name. These supplemental responses shall be served on or before September 29, 2023.

Cross-Defendant is precluded from introducing into evidence any material which would be responsive to Defendants’ Request for Production (Set Three) propounded to Cross-Defendant Kareem Corp other than the documents already identified. Plaintiff is likewise precluded from introducing any such evidence other than those documents already identified to support any claims for which Kareem Corp. is Plaintiff’s assignor.

If Cross-Defendant fails to serve supplemental responses on or before September 29, 2023, Cross Defendant shall be precluded from introducing into evidence any material which would be responsive to Defendants’ Request for Production (Set Three) propounded to Cross-Defendant Kareem Corp. Plaintiff will likewise be precluded from introducing any evidence to support any claims for which Kareem Corp. is Plaintiff’s assignor.

Defendants’ Request for Monetary Sanctions is DENIED.

DISCUSSION:

Request for Judicial Notice

Defendants request that the Court take judicial notice of certain materials in support of their improper “Further Reply” as addressed below. As the Court does not rely on these materials in reaching its ruling, Defendants’ request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Further Reply

Defendants have filed a document entitled a “Further Reply” which is accompanied by a declaration of Defendants’ counsel, in addition to their Reply brief filed June 16, 2023. No such supplemental reply brief is authorized either by statute or by the order of this Court. The Court therefore refuses to consider these materials in ruling on this motion.

Nonmonetary Sanctions

Defendants request terminating sanctions, or, in the alternative, issue or evidentiary sanctions against Cross-Defendant Kareem Corp. and Plaintiff in its capacity as Cross-Defendant’s assignee for failure to comply with court orders.

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.)

The procedural history of this matter is as follows: on February 27, 2023, this Court entered an order granting Defendants’ Motion to Compel Further Responses to Requests for Production (Set Three) propounded to Cross-Defendant. (February 27, 2023 Minute Order.) In so ordering, the Court specifically ordered Cross-Defendant to produce verified, code-compliant discovery responses without objections within 30 days of that order, and to pay monetary sanctions in the amount of $665 within 10 days of that order. (Id.)

Defendants argue principally that the Court should grant terminating sanctions against Cross-Defendant and, by extension, Plaintiff with respect to claims brought on behalf of Cross-Defendant on the basis that Cross-Defendant has not complied with the Court’s order. At the time this motion was filed, Defendant’s counsel stated under penalty of perjury that no responses had been provided. (Declaration of Donald Velez ISO Mot. ¶ 2.)

In opposition, Cross-Defendant argues that it ultimately provided late discovery responses on May 2, 2023, and therefore terminating sanctions are not warranted. (Declaration of Richard B. Jacobs ¶ 2.) In reply, Defendants have provided Cross-Defendant’s identical responses, which state:

Objection to the extent that the request calls for attorney-client privileged information. Objection to the extent that the request calls for expert documentation for experts that have not yet been designated. Objection to the extent that the request is overbroad. Without waiving the objections, Cross-Defendant responds as follows: Cross-Defendants has performed a diligent search and reasonable inquiry into finding the requested items. Cross-Defendants have produced all non-privileged documents that are responsive and in Cross-Defendant’s possession and control.

(Declaration of Donald Velez ISO Reply Exh. A.) A raft of objections that then fails to specifically identify responsive materials is compliant with neither the Court’s order nor the Code of Civil Procedure. (February 27, 2023 Minute Order; Code Civ. Proc. § 2031.280.)

At the previous hearing on this motion on July 13, 2023, Cross-Defendant represented to this Court that it had produced substantive supplemental responses to the requests. Because of this statement, the Court continued the hearing on this motion and directed the parties to meet and confer regarding the substance of the supplemental production. (July 13, 2023 Minute Order.) Defendants, in a supplemental reply, argue that Cross-Defendant’s production was inadequate because it consisted entirely of citations to the Los Angeles Municipal Codes and “old property documents.” (Supplemental Declaration of Donald Velez ¶¶ 4-5.) Further, Defendants argue that the responses are not code-compliant because they do not identify from which entities the documents were produced, nor to which requests the documents are responsive. Neither party has provided the documents produced for the Court’s review. Plaintiff and Cross-Defendants have produced the responses themselves, which consist entirely of bulk references, without specifics nor identification, to hundreds of pages of documents. (See, e.g., Plaintiff’s Supplemental Opposition Exh. 1.) These responses are not code-compliant on their face.

Plaintiff also opposes this motion on the grounds that Plaintiff was not a party to the underlying Motion to Compel Further Responses, and thus should not be sanctioned for the conduct of Cross-Defendant. However, the notice of motion expressly states that nonmonetary sanctions are sought against Plaintiff only insofar as Plaintiff has been assigned claims which would be affected by sanctions against Cross-Defendant. (Notice of Motion, SAC ¶ 1.) Nonmonetary sanctions are therefore warranted against Plaintiff to this limited extent.

The Court agrees with Defendants that nonmonetary sanctions are warranted for Cross-Defendant’s repeated failure to comply with the Court’s February 27, 2023 order to produce verified, code-compliant responses without objections. Applying the established precedent for non-monetary sanctions, however, the Court does not share Defendants’ view that terminating sanctions are the only possible remedy. The materials sought pertain directly to Kareem Corp.’s claims of injury against Defendants arising from dust, particulates, noise, or parking obstructions, including payment records, lease agreements, business licenses and certificates of occupancy, and building inspection records. (See Declaration of Ross Steinbach ISO Motion to Compel Further Responses filed December 15, 2022 Exh. A.) Defendants have formally requested evidentiary sanctions, which are typically the appropriate sanction for repeated failure to comply with discovery obligations. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 390.)

Although Defendants do not specify the type of evidentiary sanctions sought, the underlying materials sought provide useful guidance. As these materials pertain to Cross-Defendant and Plaintiff’s claims against Defendants, the Court finds that an appropriate sanction to mitigate the harm done by the failure to produce these materials is to preclude the introduction of evidence which would be responsive to the requests at issue, other than those already identified. Further, as the responses already provided are not code-compliant, the Court will require Cross-Defendant to provide supplemental responses which identify from which entities the documents were produced, identify the documents themselves, and identify the requests to which the documents are responsive.

Monetary Sanctions

Defendants also request monetary sanctions in the amount of $1,475. However, the notice of motion does not identify whether the motion seeks sanctions against Cross-Defendant, its counsel, or both. An award of sanctions that has not been properly requested against a proper party or their counsel does not comply with the statutory requirements and is a violation of the opposing party’s right to due process. (Code Civ. Proc. § 2023.040.) The Court therefore declines to award monetary sanctions.

CONCLUSION:

For the reasons explained above, Defendants’ Motion for Terminating Sanctions, or, in the alternative, Evidentiary or Issue Sanctions is GRANTED IN PART.

Defendants’ Request for Monetary Sanctions is DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: September 15, 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.