Judge: Upinder S. Kalra, Case: 21STCV22977, Date: 2022-12-21 Tentative Ruling

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Case Number: 21STCV22977    Hearing Date: December 21, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   December 21, 2022                                        

CASE NAME:           Jessica Davalos, et al. Maria Santos Davalos, et al.

CASE NO.:                21STCV22977

MOTION FOR TERMINATING SANCTIONS

MOVING PARTY: Plaintiffs Jessica Davalos and Alejandra Davalos

RESPONDING PARTY(S): Defendants Maria Santos Davalos and Eduardo Davalos

REQUESTED RELIEF:

1.      An order granting terminating sanctions, striking Defendants’ Answer

2.      Alternatively, an order granting evidence or issue sanctions

TENTATIVE RULING:

1.      Motion for Terminating Sanctions, striking Defendants’ Answer is DENIED

2.      Alternatively, Motion for Issue Sanctions is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 21, 2021, Plaintiffs Jessica Davalos a/k/a Jessica Davalos-Ruiz and Alejandra Davalos a/k/a Alejandra Davalos-Ruiz filed a complaint against Defendants Maria Santos Davalos d/b/a La Barca de Jalisco Restaurant and La Barca Jalisco Restaurant, Eduardo Davalos, and Does 1 through 100. The complaint alleged ten causes of action: (1) Failure to Pay Applicable Minimum Wage, (2) Unpaid Overtime Wages, (3) Failure to Provide Meal Periods, (4) Failure to Provide Rest Periods, (5) Unreimbursed Business Expenses, (6) Failure to Furnish Complete and Accurate Wage Statements (7) Final Wages Not Timely Paid, (8) Breach of Contract, (9) Breach of Contract, and (10) Violation of California Unfair Business Competition Law. The Complaint alleges that the Plaintiffs worked for the Defendants at their restaurant. During their time there, the Plaintiffs did not receive proper wages for the hours worked, did not receive proper meal breaks and rest periods, and did not receive accurate wage statements.

On September 13, 2021, Defendant Eduardo Davalos filed an Answer.

On September 13, 2021, Defendant Maria Santos Davalos filed an Answer.

On January 10, 2022, Plaintiff Alejandra Davalos filed 6 Motions to Compel.

On January 10, 2022, Plaintiff Jessica Davalos filed 6 Motions to Compel.

On September 26, 2022, Plaintiffs filed the current Motion for Terminating Sanctions. Defendants Opposition was filed December 8, 2022. Plaintiffs’ Reply was filed on December 14, 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).) 

REQUEST FOR JUDICIAL NOTICE:

Plaintiff requests the following document be judicially noticed:

1.      The Court’s Minute Order, entered April 12, 2022, regarding Plaintiffs’ 12 discovery motions

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

            Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

            Plaintiff’s request for judicial notice is GRANTED, pursuant to Evidence Code § 452(d).

ANALYSIS:

            Plaintiffs move for terminating sanctions against Defendants Maria Santos Davalos and Eduardo Davalos. Specifically, Plaintiffs request that the Court strike Defendant’s Answers and render judgment by default in favor of Plaintiffs. Alternatively, Plaintiffs request issue or evidence sanctions.

            Plaintiffs argue that terminating sanctions are appropriate because Defendants have failed to produce court ordered discovery responses for more than four months, despite having received these requests in November 2021. On January 10, 2022, after providing extensions to Defendants without receiving any response, Plaintiffs filed 6 discovery motions each. The day before the hearing, Defendants served incomplete set of responses only to the RFAs, Set One, but did not provide any other responses of documents. The day of the hearing in April, the matter ws continued, and the Court ordered the parties meet and confer. On May 11, 2022, Defendants served “solely amended responses to Plaintiffs’ Requests for Admissions, Sets One,” but did not provide any other responses to the RPDs or Interrogatories. On May 13, 2022, the Court granted the discovery motions and ordered responses within 15 days.

            Plaintiffs argue that Defendants’ actions are subject to terminating sanctions because they have consistently failed to comply with discovery obligations as well as comply with this Court’s Order. (Motion 5:8-17.) Thus, because of this failure, Plaintiffs request that the Court strike the Answer, as trial is set for February, and Defendants have still not provided responses to the discovery requests. Alternatively, Plaintiffs request either issue or evidence sanctions.

            Issue Sanctions and Evidence Sanctions:

Plaintiffs request that the Court order the following designated facts to be taken as true or Defendants are precluded from introducing any evidence to refute or oppose the following matters:

1.       Defendants jointly and severally employed Plaintiffs

2.       Plaintiffs were non-exempt employees of Defendants

3.       Defendants failed to pay Plaintiffs for their regular hours worked for Defendants

4.       Defendants failed to pay Plaintiffs for their overtime hours worked for Defendants

5.       Defendants failed to provide Plaintiffs meal periods on every workday they worked for Defendants

6.       Defendants failed to provide Plaintiffs rest periods on every workday they worked for Defendants

7.       Defendants failed to reimburse Plaintiffs for mileage, gas, and data usage on their personal cell phone that they incurred in the course and scope of their employment with Defendants

8.       Defendants knowingly and intentionally failed to provide Plaintiffs with complete and accurate wage statements as required under California Labor Code section 226

9.       Defendants failed to pay Plaintiffs all wages, earned and unpaid, upon their separation of employment

10.   Defendants received a loan of at least $30,000 from plaintiff Jessica Davalos, and they failed to repay plaintiff Jessica Davalos any of it

11.   Defendants received a loan of at least $30,000 from plaintiff Alejandra Davalos, and they failed to repay plaintiff Alejandra Davalos any of it

Defendants argue that terminating sanctions are inappropriate. Defendants’ counsel states that in February 2022, counsel’s email had been hacked and as of late May 2022 was using a different email address. After late May 2022, counsel did not receive any calls from Plaintiffs counsel or any copies of motions or court orders. Therefore, Defendants’ counsel was “unaware of any pending motions or subsequent court orders. However, on or about last week of October of 2022, during a case review, defense counsel reviewed the court’s website and learned of the discovery motions that were filed by the plaintiffs and the court’s subsequent orders.” (Opp. 2: 15-19.)

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.)

The Court admonishes Defendants’ counsel for a lack of candor in their motion and declaration. In it, counsel states that they were unaware, as of May 2022, that there were any pending motions or court orders. However, the Minute Order from May 13, 2022, that was filed by the Clerk of this Court indicates that Aldo Flores appeared telephonically. At this hearing, this Court granted the 12 Motions to Compel, and ordered responsive documents “must be produced no later than 15 days of the entry of this Order.” (Minute Order 5/13/2022, pg. 3.) Additionally, if counsel did not know of any pending matters, then why did they serve amended responses on May 11^th, two days before the May 13^th hearing. Defendants’ excuses fly in the face of the facts.

Moreover, counsel states that they started using a different email address in May 2022. Yet, a Notice of Change of Address or Other Contact Information was not filed until October 28, 2022, after the current motion for terminating sanctions had been filed for over a month. Even after filing that motion, Defendants’ Opposition was not filed until December 8, 2022.

 The Court finds that terminating sanctions are harsh and inappropriate at this time. However, evidence and issue sanctions would be appropriate considering Defendants’ counsel’s conduct. Defendants knew that there were 12 pending discovery motions served back in November 2021. Thus, any claim that counsel did not know there were pending motions after May is, at best, disingenuous, and at worst, a lie. Thus, issue sanctions are appropriate if verified, objection free responses are not served  before this motion is heard.

Issue Sanctions are GRANTED.

CONCLUSION:

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

            Motion for Terminating Sanctions is DENIED, in part. Issue Sanctions are GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             December 21, 2022                 __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court