Judge William A. Crowfoot, Case Number: 22AHCV01111, Date: 2023-09-15 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV01111, Date: 2023-09-15 Tentative Ruling

Plaintiffs Lizette Torres and Omar Torres Angulo (collectively, “Plaintiffs”) move for an order imposing terminating, issue, or evidentiary sanctions against defendant General Motors LLC (“Defendant”) or, in the alternative, an order imposing monetary sanctions and compelling compliance with a prior court order issued on September 15, 2023 (the “September 15 Discovery Order”).

Plaintiffs contend that Defendant has failed to abide by the September 15 Discovery Order by providing unverified further responses and improperly withholding documents responsive to Requests for Production Nos. 16, 19 through 21, 32, 35, 38, 39, 42, 57, and 60 through 62, which seek internal investigation documents, customer complaints, Defendant’s lemon law policies and procedures, and documents supporting Defendant’s refusal to purchase Plaintiffs’ vehicle, a 2020 Chevrolet Silverado 1500 (“Subject Vehicle”). (Motion, p. 1.)

Defendant filed an opposition brief, as well as a declaration from defense counsel, Claudia Gavrilescu, on December 20, 2023.

On January 4, 2024, the Court continued the hearing and ordered the Plaintiff to submit a supplemental declaration with an explanation for counsel’s method of calculating monetary sanctions. Plaintiff filed this supplemental declaration on January 18, 2024. Defendant filed a response on February 1, 2024.

When a party refuses to obey a court order compelling a further response to an inspection demand, the court “may make those order that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., § 2031.310, subd. (i).) An issue sanction will order that certain “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.” (Code Civ. Proc., § 2023.030, subd. (b).) An evidentiary sanction will “prohibit any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Id., subd. (c).) A terminating sanction may entail 1) striking the pleadings of a party misusing the discovery process; 2) staying further proceedings by the offending party until the order is obeyed; 3) dismissing the action against the offending party; or 4) rendering default judgment against the offending party. (Id., subd. (d).) In lieu of, or in addition to, an issue, evidentiary, or terminating sanction, the court may impose a monetary sanction ...” (Code Civ. Proc., § 2031.310, subd. (j).) “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.” (Liberty Mut. Fire Ins. Co. v. LcL Adm'rs, Inc. (2008) 163 Cal.App.4th 1093, 1102 [citing Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)

The main purpose of discovery sanctions is to enable the interrogating party to obtain the information sought rather than simply to punish a disobedient party or lawyer. While each case is to be decided on its own merits, the sanctions imposed must not go beyond those necessary to further the purposes of discovery—i.e., to compel disclosure and to compensate for costs incurred in enforcing discovery. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293. It is an abuse of discretion to impose sanctions solely for punishment purposes. (Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262,

Before imposing a “terminating” sanction, courts should usually grant lesser sanctions: e.g., orders staying the action until plaintiff complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party. It is only when a party persists in disobeying the court's orders that the ultimate (“doomsday”) sanctions of dismissing the action or entering default judgment, etc. are justified. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796.)

The moving party need only show the failure to obey earlier discovery orders. Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for that party's conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

First, Plaintiffs take issue with Defendant’s supplemental responses because they were not provided before the deadline set by the Court, which was October 16, 2023. Instead, Defendant served responses on October 30, 2023, 3 days after Plaintiffs sent an inquiry and request for their supplemental responses. Second, Plaintiffs point out that Defendant’s responses are unverified. It is well-settled law that discovery responses served without verification “are tantamount to no response at all.” (Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 633.) Third, Plaintiffs argue that Defendant’s responses which purport to comply with each request “in whole” are disingenuous because Defendant only produced a limited set of bates-stamped documents.

Defendant does not address any of Plaintiffs’ specific complaints in its opposition brief, nor did Defendant submit a response to Plaintiffs’ separate statement. Instead, Defendant states that Plaintiffs’ assertions are unfounded and that its supplementation has rendered Plaintiffs’ motion moot. Defendant does not dispute that it identified a list of the twenty-seven transmission “engineering work orders” and fourteen electrical “engineering work orders,” but did not include the actual work orders in its response or production, even though those are internal investigation documents responsive to the Requests. Defendant also does not dispute it only produced some internal investigation and root cause analysis documents for five of the nine Technical Service Bulletins (“TSBs”) and twelve engineering e-mails for two of the nine TSBs. In the declaration submitted on February 1, 2024, defense counsel reiterates that any failure to produce responsive documents was inadvertent and that sanctions should not be imposed because the motion is “moot.”

“Misuses of the discovery process include . . . [d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.) Defendant failed to obey the Court’s September 15 Discovery Order and provided no substantive defense justifying its untimely and unverified responses or its incomplete production. The Court concludes that monetary sanctions would be appropriate to address Defendant’s conduct, as Plaintiffs proposed issue and evidentiary sanctions would result in a windfall. Plaintiffs request the Court impose issue and evidentiary sanctions that conclusively establish that Defendant knew of the Powertrain and Electrical Defects, knew that the Subject Vehicle suffered from the Powertrain and Electrical Defects, knew that the Subject Vehicle was unrepairable, and knew that the Powertrain and Electrical Defects substantially impaired the use, value, and safety of the Subject Vehicle. These sanctions would effectively eliminate Plaintiffs’ burden of proof to show that the Subject Vehicle was defective. Additionally, the Court notes that no monetary sanctions have been imposed on Defendant thus far, and the Court is more inclined to take an incremental approach to address Defendant’s misuses of discovery.

The Court ordered Plaintiffs to submit a supplemental declaration which would explain how they calculated a prospective sanction of $500 a day, why prospective sanctions were preferable, and whether the sanctions would be paid by Defendant, defense counsel, or both.

Plaintiffs’ counsel, Joseph Liu, declares that prospective sanctions were requested because Defendant would then be encouraged to cure its violations of the September 15 Discovery Order. (Supp. Liu Decl., ¶ 6, 6.) Mr. Liu states that in his experience, Defendant has a habit of serving supplemental responses at the last minute in order to “moot” any motion and avoid sanctions. (Liu Decl., ¶ 5.) However, it appears that Defendant has since complied with the September 15 Discovery Order in full, so no prospective sanctions are necessary. (Pappas Decl., ¶ 4.) Therefore, the Court shall impose sanctions in the amount incurred in reasonable attorneys’ fees and costs to bring this motion.

Mr. Liu bills at an hourly rate of $475 and that he spent 5.51 hours drafting this motion for sanctions, 0.63 in reviewing the Opposition and supporting documents, 0.65 hours in drafting the Reply, 2.1 hours reviewing Defendant’s supplemental further responses and production served two days before the initial hearing on January 4, 2024, 1.81 hours preparing for and attending the hearing on January 4, 2024, and 0.4 hours in preparing this supplemental declaration. (Liu Decl., ¶ 8.) In total, Plaintiffs request $5,272.50 be paid by Defendant, not defense counsel, to Plaintiffs’ Counsel, Consumer Law Experts, PC, within 14 days.

Plaintiffs’ motion is GRANTED. Defendant is ordered to pay $5,272.50 to Plaintiff’s counsel, Consumer Law Experts, PC, within 14 days of this hearing.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.