Judge: William A. Crowfoot, Case: 19STCV15116, Date: 2022-08-26 Tentative Ruling

Case Number: 19STCV15116    Hearing Date: August 26, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On May 1, 2019, Plaintiff Marilyn Sue Lawrence (“Plaintiff”) filed this action against Defendants C. Macintosh Incorporated dba Craig’s Plumbing (“Defendant”), Robert D. Heron, and Claire L. Heron arising from a May 3, 2017 incident.  Plaintiff alleges that she stepped in an open drain hole and fell.

On June 22, 2022, the Court granted Defendant’s motion for an order compelling Plaintiff’s responses to Demand for Production of Documents (Set Two).

On July 26, 2022, Defendant filed this motion for sanctions.  No opposition has been filed.

II.          LEGAL STANDARD

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.”  (Code Civ. Proc., § 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  The court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process.  (Code Civ. Proc., § 2023.030, subd. (d).)  Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery.  (Code Civ. Proc., § 2023.010, subds. (d), (g).)  A terminating sanction may be imposed by an order dismissing part or all of the action.  (Code Civ. Proc., § 2023.030, subd. (d)(3).)

The court should consider the totality of the circumstances, including 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 discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  If a lesser sanction fails to curb abuse, a greater sanction is warranted.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.)  Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Before any sanctions may be imposed, the court must make an express finding that there has been a willful failure of the party to serve the required answers.  (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.)  Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply.  (Deyo, supra, 84 Cal.App.3d at 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-11.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.  (Deyo, supra, 84 Cal.App.3d at 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

III.        DISCUSSION

Defendant seeks a court order imposing issue, evidentiary and/or terminating sanctions against Plaintiff for failure to comply with the Court’s June 22, 2022 order.

On June 22, 2022, the Court granted Defendant’s motion for an order compelling Plaintiff’s responses to Demand for Production of Documents (Set Two).  (Motion, Marks Decl., ¶ 3, Ex. A.)  Plaintiff was ordered to serve verified responses without objections to Defendant’s Demand for Production of Documents (Set Two) within 20 days of the date of the order.  (Id.)  Plaintiff was present at the hearing and was also served with a Notice of Ruling on June 27, 2022.  (Id.; 6/27/22 Notice of Ruling.)

Responses were due by July 12, 2022.  (Motion, Marks Decl., ¶ 3.)  After responses were not received, Defendant’s counsel spoke with Plaintiff by telephone on July 15, 2022 and asked her about the responses ordered by the Court.  (Id., ¶ 4.)  Defendant’s counsel indicates Plaintiff failed to say whether the responses were forthcoming.  (Id.)  To date, no responses have been received.  (Id.)

The Court finds issue, evidentiary, and terminating sanctions are not appropriate at this time.  While Plaintiff has failed to comply with the Court’s June 22, 2022 order to serve verified responses without objections to Defendant’s Demand for Production of Documents (Set Two), the Court notes that monetary sanctions have yet to be imposed against Plaintiff in this case.  The Court thus cannot find that lesser sanctions would not produce Plaintiff’s compliance with the discovery rules.  (See Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191 (stating that terminating sanctions are to be used sparingly because of the drastic effect of their application and that 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).)  Defendant is thus not entitled to issue, evidentiary, or terminating sanctions at this time.

While the Court would be inclined to adopt an incremental approach and impose monetary sanctions, Defendant has not requested monetary sanctions.

VI.     CONCLUSION

          In light of the foregoing, Defendant’s motion for sanctions is DENIED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.