Case Name: Jesus Quintero vs Unified Protective Services, Inc. et al.
Case No.: 16CV298942

Plaintiff has filed a single motion for terminating sanctions, or alternatively issue sanctions, against two separate defendants, Unified Protective Services, Inc. (“UPS”) and Wal-Mart Stores, Inc. (“Wal-Mart”). The motion was timely and properly served, and is unopposed. However, “the failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” (Rule of Court 3.1348(b).)

Plaintiff’s request for judicial notice is GRANTED.

By combining the motion for terminating or alternative sanctions against two defendants, Plaintiff makes the facts seem worse than they are. Even though both Defendants are represented by the same counsel, they are not the same parties. UPS is the subject of one discovery order that was not complied with, and Wal-Mart is the subject of two discovery motions that were both issued on the same day.

“If a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction…lieu of, or in addition to, that sanction, the court may impose a monetary sanction.” (Code Civ. Proc. § 2031.310(i)).)

Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102). Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293). In exercising this discretion, the court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992).

In the discovery context, willfulness may be found where the responding party “understood his [or her] obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787). “A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at 787-788 (citing Snyder v. Sup. Ct. (1970) 9 Cal.App.3d 579, 587.)

The trial court should “attempt to tailor the sanction to the harm caused by the withheld discovery.” (Id.) The Court’s discretionary authority in determining the appropriate sanction is limited by the principle that discovery sanctions are meant to be remedial rather than punitive. (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381). The discretionary imposition of a sanction is proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought, but not when it places the prevailing party in a better position than if discovery had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958).

Finally, non-monetary sanctions are imposed upon incremental bases depending upon the severity of the violation. (See Doppes, supra, 174 Cal.App.4th at 992). “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.” (Id.) Here, Plaintiff has gone straight to terminating sanctions, but has also sought issue sanctions as an alternative.

Ordering terminating sanctions is not an action this Court can undertake without careful consideration; and only in circumstances where a violation is willful, preceded by a history of abuse and the evidence shows that a less severe sanction would not produce compliance with the discovery rules. (See Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516; Sec. Pac. Nat. Bank v. Bradley (1992) 4 Cal. App. 4th 89 (Overturning trial court on error for granting terminating sanctions where defendant’s failure to file separate responsive statement was not willful).) “[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Although the question is close in this case, as counsel for Defendants has repeatedly failed to appear, has not responded to discovery, and does not oppose discovery motions, the Court is unwilling to take that drastic step just yet.

Where non-monetary sanctions are appropriate, “the court may impose an issue sanction 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.” (Cal. Civ. Proc. § 2023.030(b)). “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.” (Id.) (See also Code Civ. Pro. §§ 2030.290(c) and 2030.300(e) (issue sanctions in connection with responses to interrogatories); Code Civ. Pro. §§ 2031.300(c) and 2031.310(i) (sanctions in connection with demands for inspection); Code Civ. Pro. § 2031.320(c) (issue sanctions in connection with failure to permit inspection of documents).

The Court finds that the Defendants’ failure to comply with discovery orders and appropriately respond to discovery are a misuse of the discovery process and that issue sanctions sought by Plaintiff are appropriate in this case. Not only have Defendants not complied with these discovery orders, this motion was not even opposed. However, the Court notes that it is an abuse of discretion for a trial court to issue a terminating sanction (or other non-monetary sanction) for the failure to pay a monetary discovery sanction. (See Newland v. Sup. Ct. (1995) 40 Cal.App.4th 608, 610 [stating that a terminating sanction is never justified for the failure to pay a monetary sanction because a sanctions order has the full force and effect of a money judgment and is immediately enforceable through execution].) The failure to pay the monetary sanctions has not been considered in making this order.

However, the Court will expect separate orders to be issued, one for each Defendant. Moving party shall prepare the orders. Each order should list the designated facts that are taken as established.

Plaintiff also seeks an award of monetary sanctions in connection with this motion. The only statutes cited in support of the request for monetary sanctions are sections 2023.030(a), 2030.290(c), and 2030.300(d). (See Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221 [indicating that a party must provide notice of the specific statute in support of a sanctions request to permit the opposing party to put forward a defense].) The Court does not award sanctions for time spent meeting and conferring or expenses not yet incurred. (See Code Civ. Proc., § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, attorney’s fees for any anticipated attorney’s fees are not compensable. In any event, as there has been no opposition and no reply is required, nor is an appearance likely required, the Court will only award fees and costs for preparation of the motion. Counsel’s hourly rate and the amount of time spent preparing the opposing papers are otherwise reasonable. Therefore, Plaintiff’s request for monetary sanctions is GRANTED in the total amount of $3500, but one-half shall be allocated to UPS and counsel, and one-half allocated to Wal-Mart and counsel. Each separate order shall reference $1,750 as monetary sanctions awarded.

Moving party shall prepare the two separate orders.