Case Name: Patricia Goularte vs Anthony Stafford et al
Case No.: 16CV294439

Defendants have moved to compel a property inspection, and also for “sanctions” which appear to be based on, inter alia, a claim that various acts of misconduct have “wasted” the Defendants’ time. The Defendants’ motion is quite simply a mess, does not comply with the Code, and seeks unavailable remedies.

The motion to compel a property inspection is DENIED. First, Defendants did not meet and confer before filing this motion. Moreover, the motion is not timely, as it was not filed within 45 days from service of the objection to the inspection demand, or at a minimum 45 days from the claimed refusal to allow the inspection, in August of 2018. (See CCP 2031.310(b)(2); 2016.040.)
Defendants’ motion for “sanctions” is also DENIED, for multiple reasons.

Code of Civil Procedure, § 2023.040 states: “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.” The notice of motion fails to comply with this statute, and mentions only attorney fees without specifying the amount or who is required to pay, and makes no mention of non-monetary sanctions.

The only code section cited in support the motion are CCP sections 2023.010 and 2023.030, and claims generic abuses of the discovery process. The alleged abuses are failure to permit an agreed inspection; propounding duplicate and burdensome discovery; and committing perjury. Notably, Defendants fail to link these “abuses” to specific discovery code sections beyond CCP 2023.010.
The memorandum (but not the notice of motion) states that the request for monetary sanctions is pursuant to Code of Civil Procedure, §§ 2023.010 and 2023.030. Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction. Section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, sections 2023.010 and 2023.030 do not provide an independent basis for an award of sanctions.

Defendants seek sanctions for the failed mediation, for having to respond to discovery, for “perjury” and evasive answers to discovery, for duplicate and burdensome discovery requests, for the motion to compel discovery (for the motion to compel inspection?), and also an evidentiary and issue order that the Plaintiffs have no right to damages and are precluding from presenting evidence of damages. The notice of motion fails to mention any non-monetary sanctions request.

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 trial 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.)
Defendants have not filed any prior motion to compel, including for any written discovery request, and no prior discovery orders have been issued. No evidence or issue sanctions may be awarded and are DENIED. Nothing in the Code authorizes an award of “damages” as Defendants apparently seek and the request for monetary sanctions are DENIED AS NOT CODE-COMPLIANT.

The parties are ordered to meet and confer to agree on a date and the terms for an inspection. Defendants may not use an inspection in this case for purposes of a different action.