Case Name: Law vs. Choo
Case No.: 16CV303394

On April 26, 2018, the Court issued its orders to compel Defendant Lynn Chou to respond to specified discovery requests and pay monetary sanctions. Plaintiff has established that Defendant has failed to comply with that order. Plaintiff asks for issue, evidence or terminating sanctions as a result.

Initially, the Court does not award non-monetary sanctions for failure to pay monetary sanctions. Although failure to pay monetary sanctions may be considered by the Court where other court orders have not been followed, it is not proper to dismiss or impose a default sanction because the party has not paid sanctions previously ordered. (Newland v. Sup.Ct. (Sugasawara) (1995) 40 Cal.App.4th 608, 615—“a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified”.) Monetary sanctions ordered during discovery is enforceable through execution of judgment laws;  such orders have force and effect of money judgment, and are immediately enforceable through execution, unless the trial court orders a stay. (Newland, supra, 40 Cal.App.4th at 615.)

The Court ordered that Defendant serve responses to discovery within twenty days after Plaintiff had served notice of entry of the orders. Notice of entry was in April and June of 2018, and the time to serve responses has long since passed. Despite the court’s order, Defendant does not seem to believe that she is required to serve appropriate responses, and in general has not responded properly in writing to the discovery requests ordered.

The Court has just received a very tardy opposition filed on January 29, 2019. This opposition purports to contain partial discovery responses, served by mail on Plaintiff’s counsel who likely has not received these pleadings. Defendant has not claimed before now that discovery responses were served. None of the attached partial discovery responses are verified, and the Court will not consider this opposition that was not timely filed or served, or served in a manner likely to lead to actual notice to opposing counsel. Any opposition to a motion must be filed and served at least 9 court days before the hearing, which would have been January 17, 2019. Moreover, the “opposition” asks the Court to reverse the order issued on January 24, 2019 with other relief that is DENIED, because not code-compliant, and a fully noticed motion would be required. In any event, the purported responses to the requests for admission are not code-compliant, and not complete.

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).

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 requests evidence and/or issue sanctions.

In general, the Court finds it more appropriate to order evidence sanctions in the context of this case, to prohibit Defendant from introduce evidence that would have been produced had Defendant responded to the discovery. Any motion for issue or evidence sanctions in the alternative requires Plaintiff to specify the issues, facts or evidence that should be determined against the other parties based upon the information that would have been obtained by the responses to discovery. (CCP 2023.030(b).)

The FIs in question in part seek information about the Cross-complaint, not Plaintiff’s claims (see definition of “Incident”), although FI 15.1 seeks information about denials and defenses.
Accordingly, the motion is GRANTED to exclude evidence that would have been produced in response to FIs 7.1 to 7.3 (property damage that Defendant claims); 9.1 to 9.2 (other damages Defendant claims); FI 15.1 (Defendant’s contentions and evidence about her denials and affirmative defenses); FI 50.1 through 50.6 (contract evidence); and in response to the Request for Production of Documents. The Court will exclude any witnesses, or documents that should have but have not yet been produced in response to the discovery. Plaintiff is directed to prepare an appropriate order that clearly lays out the evidence that will not be permitted.

Terminating sanctions, sought in the alternative, are DENIED. 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.) “[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.)

Plaintiff also seeks monetary sanctions for the cost of preparing this motion. The Court orders payment of $1,500 in monetary sanctions, plus $60 for the filing fee. The Court finds that the requested amount was excessive, as the Court has denied parts of the relief requested, and the Court finds that portions of the pleadings in support motion were not necessary (such as the separate statement that included sections that were not included in the requests for sanctions).

Plaintiff shall prepare the order.