Judge: Thomas S. Mcconville, Case: 2021-01201966, Date: 2023-08-07 Tentative Ruling
Defendant Westminster School District, erroneously sued as Westminster Elementary School District, Motion for Terminating Sanctions, or Alternatively, Issue, Contempt, and/or Monetary Sanctions Against Plaintiff is GRANTED in part. (Code Civ. Proc., §§ 2023.010, subd. (g), 2023.030, 2030.290, subd. (c) [authorizing a range of sanctions for disobeying court order to provide discovery]).
Defendant has demonstrated that plaintiff Robin Kirk has failed to engage in discovery throughout this case. As a result, defendant has successfully moved the court for multiple orders compelling plaintiff to comply. (Chung Decl.—June 16, 2022 and February 6, 2023 Orders). Those orders reflect that plaintiff was present for both hearings when those orders issued. Defendant’s moving papers also demonstrate protracted meet and confer efforts expended by defendant to gain plaintiff’s compliance with discovery requests and discovery orders. Defendant has satisfied the court that those efforts have been largely futile.
“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process.’ (Code Civ. Proc., § 2023.030; Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12, 74 Cal.Rptr.2d 248, 954 P.2d 511.) As relevant here, misuses of the discovery process include ‘[f]ailing to respond or to submit to an authorized method of discovery’ (Code Civ. Proc., § 2023.010, subd. (d)); ‘[m]aking, without substantial justification, an unmeritorious objection to discovery’ (id., § 2023.010, subd. (e)); ‘[m]aking an evasive response to discovery’ (id., § 2023.010, subd. (f)); and ‘[d]isobeying a court order to provide discovery’ (id., § 2023.010, subd. (g)).” Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 991.
The court finds that plaintiff has misused the discovery process, and has disobeyed prior discovery orders. Sanctions are warranted against the plaintiff here. “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Id. at 992). Code of Civil Procedure 2030.290(c) states that if a party fails to comply with an order compelling interrogatory responses (as occurred twice in this case), then, in addition to a monetary sanction, “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).”
Based on the record, plaintiff was aware of the court’s prior orders and failed to comply, evidencing willfulness. See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) [“Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful.”](internal quotations and citations omitted). Further, plaintiff has submitted no opposition to defendant’s current motion, which can be interpreted as consent to the court granting this motion. Cal. Rule of Ct. 8.54(c).
The court declines to impose terminating sanctions, but will order monetary and issue sanctions under CCP 2023.020 (a)(b), 2030.290(c). As to monetary sanctions, defendant has demonstrated many, many hours expended with plaintiff and with court filings attempting to gain plaintiff’s compliance with discovery matters. The court orders plaintiff to pay monetary sanctions of $3000.
Concerning issue sanctions, the court orders that plaintiff is prohibited from presenting any evidence of damage at trial related to defendant’s conduct.
These sanctions are appropriately graduated in an effort to gain plaintiff’s compliance. Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1043 [“where prior conduct has not been punished, it can contribute to a later award of sanctions based upon a more extensive course of conduct”]; Chun Decl., ¶¶ 8, 9, 16, and 18, and Exs. 2, 6, and 7 thereto [showing plaintiff’s failure to comply with at least two court orders compelling discovery, despite proper notice thereof].)
Moving party shall give notice.