Judge Upinder S. Kalra, Case Number: 22STCV34213, Date: 2025-06-03 Tentative Ruling

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CASE NAME: Jem Community Center, et al. v. Philadelphia Indemnity Insurance Company, et al.

MOTION FOR TERMINATING SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH JUNE 3, 2024 DISCOVERY ORDER

1. An Order for a terminating sanction striking the Complaint and entering judgment of dismissal in favor of Defendant for failing to comply with the court’s June 3, 2024 discovery order.

Plaintiffs Jem Community Center and BSD Properties, LLC (Plaintiffs) filed a complaint on October 24, 2022. Defendants Philadelphia Insurance Indemnity Insurance Company and Tokio Marine Specialty Insurance Company (Defendants) filed a Demurrer and Motion to Strike that the court sustained with leave to amend on May 22, 2023 (motion to strike mooted). Plaintiff filed a First Amended Complaint (FAC) on June 13, 2013 with two causes of action for: (1) Breach of Contract; and (2) Breach of Obligation of Good Faith.

The complaint alleges that Plaintiff and Defendants had an insurance policy whereby Defendants would indemnify Plaintiff for fire damages. In October 2020, Plaintiffs’ structure suffered damage from a fire. However, in August 2022, Defendants refused to reimburse Plaintiffs for the damage.

Defendant Tokio Marine Specialty Insurance Company (Moving Defendant) timely filed a Demurrer on July 28, 2023 which the court SUSTAINED without leave to amend.[1]

On March 18, 2024, Defendant Philadelphia Indemnity Insurance Company (Philadelphia) filed various motions to compel discovery from Plaintiffs which the court GRANTED in part.

On August 27, 2024, Philadelphia filed a motion for an OSC re: Contempt (CCP 1209) against Plaintiffs and their counsel which the court DENIED.

On February 27, 2025, Philadelphia filed the instant motion for terminating sanctions for Plaintiffs’ failure to comply with June 3, 2024 discovery order. Oppositions were due on or before May 20, 2025.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions.¿ (Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)¿

Code of Civil Procedure § 2030.040 requires that “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”¿ Furthermore, the notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.¿ (Code of Civ. Proc. § 2030.040.)¿

Monetary sanctions may be imposed “ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct…unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code of Civ. Proc. § 2030.030(a).)¿

Issue sanctions may be imposed “ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.”¿ (Code of Civ. Proc. § 2030.030(b).)¿

Evidence sanctions may be imposed “by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”¿ (Code of Civ. Proc. § 2030.030(c).)¿

In more extreme cases, the Court may also impose terminating sanctions by “striking out the pleadings or parts of the pleadings,” “staying further proceedings,” “dismissing the action, or any part of the action,” or “rending a judgment by default” against the party misusing the discovery process.¿ (Code of Civ. Proc. § 2030.030(d).)¿ The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate.¿ (Lang v. Hochman (2000) 77¿Cal.App.4th 1225, 1246.)¿ 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.)¿ “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”¿ (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.)¿

Philadelphia contends that terminating sanctions are warranted because Plaintiffs are not complying with the court’s June 3, 2024 discovery order in good faith, still owe responses to the requests for production of documents, and have otherwise misused the discovery process such that it prejudices Philadelphia’s ability to prepare this case for trial, let alone resolution. Plaintiffs did not file an opposition.

The court agrees with Philadelphia that some sanctions are warranted. First, there is a discovery order, the June 3, 2024 Order, that ordered Plaintiffs to produce verified responses without objections within 21 days. (Greer Decl. ¶¶ 12, 13.) Second, Plaintiffs had notice of this order.[2] (Greer Decl. ¶ 15.) Third, Plaintiffs did not comply with at least one component of this order – Plaintiffs have not paid the previously issued sanctions, have not provided verifications, and have not provided written responses to the requests for production. (Greer Decl. ¶¶ 18, 19, 20, 22.) Fourth, Plaintiffs repeatedly fail to participate in this litigation. (See, e.g., January 7, 2025 Minute Order on Hearing on Motion for an OSC re: Contempt [Plaintiffs failed to appear].) Indeed, Plaintiffs’ counsel has demonstrated to this court that monetary sanctions do not deter him. (Greer Decl., Exhibit H [“I’m continuing to work on the remaining items today but I’m leaving town on Friday for a week.”], Exhibit I [“Your ire is justified but let’s sort out the threads. I left for New York for ten days (wedding) first thing on June 28. At that time I had a trial set for July 29 and another one for August 12. . . .”]; See also, Opposition to Motion for OSC re Contempt, Sales Decl. ¶ 8 [nonpayment of monetary sanctions ordered] and ¶ 10 [“I have not yet responded to Defendant’s second round of discovery served in September 2024 because, at that time, I had three trials set back to back and for which all the final filings with the court for the trials had to be done. Although one trial settled and the other two got continued, filing everything with the court caused me to get backed up even to this day.”]) However, the purpose of terminating sanctions are not to punish the non-complying parties. “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36 (superseded by statute on other grounds).) This is because “the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.) Accordingly, the court cannot to impose issue, evidentiary or terminating sanctions until the impact of the discovery violations can be evaluated.

Accordingly, the court GRANTS Philadelphia’s motion but defers ruling on an appropriate sanction until the court receives additional evidence on the prejudice.

[1] The parties agreed to extend Moving Defendant’s responsive pleading deadline until July 28, 2023. (Greer Decl. ¶ 3.) Defendant Philadelphia Indemnity Insurance Company filed an Answer on July 28, 2023.