Judge: Yolanda Orozco, Case: 21STCV17703, Date: 2023-03-21 Tentative Ruling

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Case Number: 21STCV17703    Hearing Date: March 21, 2023    Dept: 31



Defendant’s Motion for Terminating Sanctions is GRANTED, and the Court stays all further proceedings until there is full compliance with the Court’s September 15, 2022 discovery order.

 If Plaintiff’s document production is deficient, or not code-compliant Defendant may file a further motion to compel further responses without the need for an Informal Discovery Conference with specific notice of and request for a sanctions order. 


On May 11, 2021, Plaintiff Excel Adjusters Inc. filed this instant action against Tigran Petrosyan, Angie Petrosyan, Hripsime Petrosyan, “Tony Y” and Does 1 to 100. The Complaint alleges:  


1)     Breach of Contract 

2)     Liable 

3)     Negligence  

4)     Extortion   

On January 05, 2023, Defendant Tigran Petrosyan moved for Terminating Sanctions against Plaintiff Excel Adjusters. 

On March 20, 2023 Plaintiff filed a very late opposition to the Motion along with an ex parte application for relief to oppose the motion. 

Legal Standard 

Code of Civil Procedure section 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by section 2023.010 of the Code of Civil Procedure 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 (Code Civ. Proc., § 2023.010, subd. (d)) and (2) disobedience to a court order to provide discovery (Code Civ. Proc., § 2023.010, subd. (g)).¿¿ 


Under California law, a discovery 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.¿¿ 


Defendant Tigran Petrosyan seeks terminating sanctions against Plaintiff Excel Adjusters Inc. for violation of the Court’s discovery order. 

On September 15, 2022, this Court granted Defendant’s motion to Compel Responses to Request for Production of Documents and awarded Defendant $425.00 in sanctions against Plaintiff and Plaintiff’s counsel. (Min. Or. 09/15/22.) Defendant asserts that as of the filing of this motion, Plaintiff has failed to produce documents in violation of the September 15, 2022, Court Order and to pay the monetary sanction.   

Defendant proposes that the terminating sanctions imposed by the Court be the dismissal of Defendant from this action or entry of default judgment against Plaintiff for abuse of the discovery process. In the alternative, Plaintiff requests that issue sanctions be issued that prohibit Plaintiff from supporting its designated claims. Lastly, Defendant asks that monetary sanctions in the amount of $4,975.00 be imposed. 

Plaintiff’s Late File Opposition 

On March 20, 2023, a day before the hearing on this motion, Plaintiff submitted opposing papers to the late-filed opposition. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, rule 3.1300 subd. (d).) 

The Court has considered Plaintiff’s late-filed opposition and rejects Plaintiff’s request to deny the motion as moot. Plaintiff represents that a full production of the requested documents, without objections, has been made. However, in filing the opposition late, Defendant has been denied the opportunity to respond and confirm that Plaintiff has in fact complied with the requested discovery. And, of course, it follows that the Court has not verified Plaintiff’s alleged compliance. 

Moreover, Plaintiff fails to articulate good cause as to why the opposition was filed late or why Plaintiff failed to comply with the September 15, 2023 Court Order. 

Accordingly, the Court addresses Defendant’s motion on the merits. 

Defendant’s Proposed Ultimate Sanctions are Not Appropriate 

The Court declines to impose the terminating sanctions requested by Plaintiff because lesser alternatives are available that may accomplish the goal of obtaining Plaintiff’s compliance with the discovery order. 

“Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that ‘are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.’ [Citation.]  In other words, discovery sanctions exist ‘not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court.’ [Citation].” 


Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183 [italics original] [internal citation and quotation marks omitted].)


Similar to the discovery issue at present, in Wilson v. Jefferson (1985) 163 Cal.App.3d 952, the Court of Appeal overturned the trial court’s decision to strike the defendant’s answer and enter default against the defendant for failing to comply with an order to produce documents. (Id.  958.) The Appeal Court reasoned that:


“‘The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery [so that a] sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.’”



To dismiss Defendant from this action or render default against Plaintiff would place Defendant in a better position than he would have had had the discovery sought been obtained. Defendant also fails to explain how the proposed issue sanctions are tailored to Plaintiff’s discovery abuse. 

No Notice of Issue or Monetary Sanctions 

Defendant’s notice of motion only informed Plaintiff that Defendant was seeking terminating sanctions and made no mention that issue or monetary sanctions would be sought. 

“The statute authorizing sanctions for abuse or misuse of discovery requires notice: ‘To the extent authorized by the section governing any particular discovery method or any other provision of this article, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process.’ (Code Civ. Proc., § 2023, subd. (b), italics added.)  The statute also provides specific guidelines as to what the notice of motion must contain: ‘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. 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.’ (Id., § 2023, subd. (c).)” 

Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207–208. 

Since Defendant’s notice regarding sanctions is deficient and failed to inform Plaintiff that issue and monetary sanctions would be sought, the Court denies Plaintiff’s request to impose such sanctions. “‘Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions.’ [Citations.]” (Sole Energy Co., supra, 128 Cal.App.4th at 208.) Thus, an order or sanction entered in violation of due process is void. (Id. at 210.) 

Because Defendant’s notice requested only terminating sanctions, the Court GRANTS Defendant’s request for terminating sanctions and imposes the following sanction: 

The Court stays all further proceedings by Plaintiff until there is full compliance with the Court’s September 15, 2022 discovery order.  (See Code. Civ. Proc. § 2023.030 subd. (d).) 


Defendant’s Motion for Terminating Sanctions is GRANTED and the Court stays all further proceedings until there is full compliance with the Court’s September 15, 2022 discovery order. If Plaintiff’s document production is deficient, or not code-compliant Defendant may file a further motion to compel further responses without the need for an Informal Discovery Conference with specific notice of and request for a sanctions order. 

Moving party to give notice.