Judge Yolanda Orozco, Case 19PSCP00106 2023-01-11 Tentative Ruling

Judge: Yolanda Orozco, Case: 19PSCP00106, Date: 2023-01-11 Tentative Ruling

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Case Number: 19PSCP00106 Hearing Date: January 11, 2023 Dept: 31

MOTION TO STRIKE ANSWER TO COMPLAINT

AND ENTER DEFAULT

TENTATIVE RULING

Plaintiff’s Motion to Strike Rowland Unified School District’s (“RUSD”) Answer to Plaintiff’s Complaint and Enter Default for Violation of a Court Order and request for Monetary Sanctions are DENIED.

Defendant’s Request for Monetary Sanctions in the amount of $490.00 is GRANTED.

Background

On July 31, 2019, Plaintiff Ann Clark, as Guardian ad Litem for Elijah Van Clark, a minor filed a Complaint against Rowland Unified School District (“RUSD”), Susan Blanchard, and Does 1 to 50. The Complaint alleges (1) Negligence, (2) Sexual Battery (against Blanchard), and (3) Negligence, (4) Negligent Hiring, Training, Supervision, and Retention.

On December 07, 2022, Plaintiff filed a Motion to Strike RUSD’s Answer to Plaintiff’s Complaint and Enter Default for violation of a Court Order.

Defendant RUSD filed opposing papers on December 22, 2022.

Plaintiff filed a reply on January 03, 2022.

Legal Standard

Code of Civil Procedure section 436 subdivision (b) states:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Code of Civil Procedure section 435.5 also requires that the parties meet and confer before filing a motion to strike:

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.”

Code of Civ. Pro (CCP) section 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP section 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order. The Discovery Act defines misuse of discovery as including (1) a failure to respond or to submit to an authorized method of discovery (id. § 2023.010, subd. (d)) and (2) disobedience to a court order to provide discovery (id., subd. (g)).¿¿ ¿¿

Under California law, a discovery sanctions order cannot go further than is necessary to accomplish the purpose of discovery.¿ (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613.) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented.¿ (McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.)¿¿¿¿¿

In addition, an order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance.¿ (Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021.)¿ Accordingly, there are grounds for terminating sanctions when a party fails to comply with discovery and fails to comply with Court orders regarding discovery.¿

Discussion

Plaintiff moves to Strike Defendant Rowland Unified School District’s (“RUSD”) Answer to the Complaint and Enter Default for Violation of Court Order and Request for Monetary Sanctions in the amount of $1,686.00.

Plaintiff alleges that Defendant RUSD violated the August 04, 2022 Court Order by failing to give Plaintiff an audio recording and report of Plaintiff’s Medical Examination within 30 days of the examination. (See Min. Or. 08/04/22.)

After Plaintiff filed this Motion, Defendant complied with Plaintiff’s request upon learning that Plaintiff had filed this instant Motion.

Defendant RUSD asserts that at no time before the service of this Motion did Plaintiff inform RUSD that she had not received the recording and report of Plaintiff’s Medical Examination. (Cheung ¶ 5.) Upon learning that Plaintiff had not received the Medical Examination recording and report, Defense Counsel sent the report the same day Defendant RUSD received notice of this instant Motion. (Cheung Decl. ¶ 6.) RUSD asserts that to date, Plaintiff has not provided an e-mail address for Plaintiff’s expert in order for RUSD to send Plaintiff’s Medical Report. (Cheung Decl. ¶ 8.) RUSD maintains that this motion is unnecessary and monetary and terminating sanctions should not be granted because the Motion could have been avoided by a simple phone call, email message or a meet and confer effort.

Plaintiff does not deny that there were no discussions between the parties about the Medical Examination report and recording before the filing of this motion. Plaintiff asserts that there was no meet and confer requirement before filing the instant Motion under the Code of Civil Procedure sections 436 and 2023.030. However, section 435.5 requires that the parties meet and confer before a motion to strike is filed and it was required here. (Code Civ. Proc., § 435.5 subd. (a).) Regrettably, no meet and confer occurred before this Motion to Strike was filed.

In addition, section 2032.620 allows a party to file a motion to compel a party to deliver reports of examination if the motion is followed by a meet and confer declaration under section 2016.040. (Code Civ. Proc., § 2032.620, subd. (a).) Plaintiff does not deny that no demand was made for the Medical Examination recording or report or that Defendant denied Plaintiff’s request.

Plaintiff also does not deny that it failed to comply with section 2023.040 by failing to request sanctions in the notice of the motion and identifying every person, party, and attorney against whom the sanction is sought, and the specific type of sanction sought. (Code Civ. Proc., § 2023.040)

In order to impose the monetary and terminating sanctions Plaintiff requests, the Court must consider the totality of circumstances and whether Defendant’s conduct was willful. In determining whether sanctions should be imposed, courts consider 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.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Generally, two facts are prerequisites to the imposition of nonmonetary sanctions: (1) absent unusual circumstances, there must be a failure to comply with a court order and (2) the failure must be willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

Here, there are no facts to indicate that Defendant’s failure to deliver a copy of the Medical Examination report and recording within 30 days was willful or that Plaintiff requested the report and Defendant failed or refused to comply. The facts support the opposite conclusion: Defendant complied as soon as it learned about Plaintiff’s request, which only occurred after this Motion was filed and served. (Cheung Decl. ¶¶ 1-6, Ex. A.)

The discovery statutes contemplate an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Since this is RUSD’s first alleged discovery offense, the facts support the finding that failure to strictly comply with the August 04, 2022 Court Order was not intentional and did not cause Plaintiff any prejudice, and that Plaintiff failed to meet and confer, sanctions are not warranted.

Although “[t]here is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed,” the Court maintains the discretion in deciding whether monetary sanctions should be awarded. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286.) The Appeal Court in Clement awarded monetary sanctions to the defendants because the plaintiff’s conduct necessitated the court’s intervention. (Id. at 1286-1287 [“‘Whenever one party's improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party.’”] citing Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)

Here, the Court’s intervention in this discovery dispute was neither necessary nor warranted due to Plaintiff’s utter failure to make any request for the Medical Examination report and recording or conduct a meet and confer as required before filing this Motion. Moreover, Defendant asserts that it has been unable to send the report of Plaintiff’s expert since no email has been provided, instead the report was sent to Plaintiff’s counsel. (Cheng Decl. ¶¶ 7, 8 Ex. A.)

Accordingly, the Court DENIES Plaintiff’s Motion in its entirety finding it has no merit.

The Court reminds Plaintiff that it may impose monetary sanctions on Plaintiff’s counsel for filing a frivolous motion alleging that the opposing party has engaged in the misuse of the discovery process. “The court may impose a monetary sanction 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.” (Code Civ. Proc., § 2023.030, subd. (a).)

Defendant RUSD requests $980.00 in monetary sanctions against Plaintiff and Plaintiff’s counsel of record. Defense counsel’s hourly rate is $245.00 per hour and defense counsel asserts he spent 3.0 hours filing opposing papers and anticipates spending an additional 1.0 hour preparing for and attending the hearing on this instant Motion. (Cheng Decl. ¶ 9.)

Defendant RUSD fails to cite any facts that Plaintiff was responsible for the filing of this instant Motion or the failure to meet and confer before filing the Motion to Strike. For this reason, the Court GRANT’S Defendant RUSD’s request for monetary sanctions in the amount of $490.00 for 2.0 hours of work against Plaintiff’s counsel only.

Conclusion

Defendant Request for Monetary Sanctions in the amount of $490.00 is GRANTED.

Plaintiff to give notice.