Judge: Upinder S. Kalra, Case: 20STCV21267, Date: 2022-07-27 Tentative Ruling

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Case Number: 20STCV21267    Hearing Date: July 27, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   July 27, 2022                                     

CASE NAME:            Moossa Naim, as Trustee of the Moossa and Laura Naim Family Trust Dated September 15, 2009 v. Katherine H. Lee, et al.

CASE NO.:                20STCV21267           

PLAINTIFF’S MOTION FOR TERMINATING SANCTIONS

MOVING PARTY: Plaintiff

RESPONDING PARTY(S): None as of July 22, 2022.

REQUESTED RELIEF:

1)      An order granting motion for terminating sanctions

2)      Alternatively, an order granting evidentiary and issue sanctions

3)      An order directing Defendant to pay $3,860 in monetary sanctions

TENTATIVE RULING:

1)      Motion for Terminating Sanctions is DENIED.

2)      Motion for Evidentiary Sanctions is GRANTED.

3)      Motion for Issue Sanctions is DENIED.

4)      Motion for Monetary Sanctions is GRANTED. 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Moossa Naim, as Trustee of the Moossa and Laura Naim Family Trust Dated September 15, 2009 (“Plaintiff”) filed a complaint against Defendants Katherine H. Lee aka Katherine Kim, KLK Forte Industry Inc., and Does 1 through 100 (“Defendants”) on June 5, 2020. The complaint alleged one cause of action for breach of contract. Plaintiff alleges that the parties entered a written commercial lease, but Defendant has breached the lease by failing to pay rent and other monetary obligations.

Defendants Katherine Kim and KLK Forte Industry, Inc., filed an Answer on April 26, 2021.

Plaintiff filed three Motions to Compel Answers on January 3, 2022, which were GRANTED.

Christopher Delaplane, counsel for Defendant KLK Forte Industry, Inc., filed a Motion to be Relieved as Counsel on January 31, 2022, which was GRANTED.

Defendant Katherine Kim filed a Substitution of Attorney on April 11, 2022, indicating that Christopher Delaplane would no longer be representing her, and she would be representing herself.

This current Motion for Terminating Sanctions was filed on April 29, 2022. No opposition has been filed as of July 22, 2022.

LEGAL STANDARD

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”  (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)  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).) 

ANALYSIS:

Plaintiff moves to have the court issue terminating sanctions. Defendant Lee has failed to comply with court orders. Discovery was served on Defendant Lee on September 28, 2021, and a three week extension was granted. (Dec. Frish ¶ 4 and 5). However, Lee failed to respond to these discovery requests. (Id. at ¶ 6). On January 3, 2022, Plaintiff filed motions to compel responses to the discovery and have Lee attend a deposition. (Id. at ¶ 8). The opposition was filed on February 22, 2022, where Defendant’s now former counsel stated he did not believe discovery was coming. (Id. at ¶ 9, Ex. 2). The court granted the motions to compel and ordered responses due by April 22, 2022, to enter into a written agreement to appear at her deposition, and to pay sanctions. (Decl. ¶ 10, Ex. 3-4).

Plaintiff contends that the above discovery abuse warrant terminating sanctions. Lee has failed to respond to any discovery requests, has failed to appear at a deposition, and failed to pay the court ordered sanctions.

Alternatively, Plaintiff requests evidentiary and issue sanctions. Specifically, Plaintiff contends that Lee should not be allowed to testify at trial or use records or items that were not produced in discovery. (Motion 7: 17-20). Plaintiff also requests the Court impose issue sanctions indicating that Naim [sic] was obligated to pay rent, failed to pay rent, and there are no affirmative defenses for this failure. (Motion 7: 25-28). 

Lastly, Plaintiff argues that additional monetary sanctions are warranted, specifically under CCP § 2030.290(c) and 2031.300(c) for discovery abuses. Plaintiff requests $3,860 in monetary sanctions for this current motion as well as the $4,500 from the previous Court order.

The trial court may order a terminating sanction for discovery abuse “after considering 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.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App..4th 377, 390.) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id.). Terminating sanctions are to be used sparingly because of the drastic effect of their application. (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191.)

If, however, if 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.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.)  Here, terminating sanctions are not appropriate currently. While the discovery was propounded in September 2021, the number of attempts to obtain discovery is not excessive. As for issue sanctions, these are not appropriate either at this time. The issue sanctions request that the Court find that Lee had a duty to pay rent, breached that duty, and has no defense. Since the requested issue sanctions go to the heart of the breach of contract claim; and as this is the only one cause of action, these issues sanctions also are too severe. However, Defendant should not be allowed to benefit for her refusal to appear at a court ordered deposition and produce records. It has been over 10 months and the Defendant has not responded to the initial discovery or complied with this Court’ order. Therefore, evidentiary sanctions are appropriate. Accordingly, Defendant cannot testify at trial and may not use any discovery that was not produced.

Sanctions:

CCP § 2030.290 provides “The court shall impose monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification…” CCP § 2031.300 provides “The court shall impose monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response to an inspection demand…unless the court finds the one acted with substantial justification…”

Plaintiff also argues that monetary sanctions are appropriate as Defendant Lee has failed to obey the court order compelling discovery. Therefore, monetary sanctions are appropriate. The requested amount is $3,860. This is based on an hourly rate of $400, based on 7.5 hours of work preparing the motion as well as the expected reply and 2 hours preparing for the hearing. As there was no reply, the court finds that five hours is a reasonable amount of time for a sanction of $2,000 plus an additional $60 for the filing fee for a total sanction of $2,060.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion for Terminating Sanctions is DENIED.

Motion for Evidentiary Sanctions is GRANTED.

Motion for Issue Sanctions is DENIED.

Motion for Monetary Sanctions is GRANTED in the amount of $2,060 payable within 30 days of service of this order.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             July 27, 2022                          __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court