Case Number: KC061942    Hearing Date: April 22, 2014    Dept: J

Re: Muhammad Hanif v. Muzaffar Ali, et al. (KC061942)

MOTION FOR TERMINATING AND MONETARY SANCTIONS (X2)

Moving Party: Plaintiff Muhammad Hanif

Respondents: Defendants Shamima Ali and Haji Shahabuddin

POS: Moving OK; Opposing OK

Plaintiff Muhammad Hanif moves for an order striking Defendants Shamima Ali and Haji Shahabuddin’s Cross-Complaint as a result of their failure to participate in discovery in this action and failure to comply with this Court’s order of July 18, 2013. Plaintiff also seeks monetary sanctions in the sum of $560.00 against each of said Defendants.

If a party fails to obey an order compelling answers or further answers to interrogatories, the court may impose whatever sanctions are just, including: (1) Issue sanction—ordering that designated facts be “taken as established” against the party guilty of discovery misuse (CCP § 2023.030(b)); (2) Evidence sanction—prohibiting the party guilty of discovery misuse from introducing designated matters in evidence (CCP § 2023.030(c)); and (3) Terminating (“doomsday”) sanction—striking pleadings, in whole or in part; or dismissing that party’s action, in whole or in part; or staying further proceedings by that party until the order is obeyed; or rendering default judgment against that party (CCP § 2023.030(d).) In addition to or in lieu of any other sanction, an award of reasonable costs and fees incurred as a result of the failure to obey (including fees on the sanctions motion). (CCP §§ 2023.030(a) (general sanctions statute), 2030.290(c) (motion to compel answers) & 2030.300(d) (motion to compel further answers).) In addition to the foregoing discovery sanctions, a court may impose a sanction of up to $1,500 payable to the court for violation of an order “without good cause or substantial justification.” (CCP § 177.5; see Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970, 978–979.)

The statute provides that the court “may make those orders that are just” if a party fails to obey prior orders. (CCP § 2030.290(c) (motion to compel answers), § 2030.300(e) (motion to compel further answers).) Thus, which of the various sanctions above may be granted for disobedience to court orders lies entirely within the court’s sound discretion. I.e., the court is not required to grant any particular sanction or any sanctions at all. (See Pember v. Sup.Ct. (Young) (1967) 66 Cal.2d 601, 604—dealing with similar provision of former statute; but see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 996—abuse of discretion to deny terminating sanctions for serious discovery abuse; at time of trial, D had still not complied with 4 prior discovery orders.) “Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply… and (2) the failure must be willful.” (Liberty Mut. Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.)

Plaintiff submits evidence that on July 18, 2013, the court granted Plaintiff’s discovery motions and Defendants were given ten days to respond to the discovery (Motion, Chapin Decl. ¶ 6); as of February 6, 2014, counsel for Plaintiff has not received responses or objections to the discovery requests (Id. ¶ 10), and that counsel for Plaintiff expended approximately two hours of time, at $250.00 per hour, in connection with each of the two motions (Id. ¶ 9).

Defendants Shamima Ali and Haji Shahabuddin, in opposition, represent that their counsel, Michael Lewis, was under a heavy burden at the time the discovery responses were due, and in good faith believed that Mr.Lewis would handle it. The failure of counsel to provide discovery responses was by no means a willful disobedience of a discovery order; and that with the exception of the answers to form interrogatories, most if not all of the documents requested have been turned over to Plaintiff previously.

Counsel for Defendants, Michael Lewis, represents that he “became overburdened” with work, and “failed to complete and provide Plaintiff with his discovery responses.” (Id. at 3). Mr. Lewis will accept all responsibility as his failure has prejudiced, and requests that all discovery sanctions be made payable by him personally as neither of his clients are to blame in this matter (Id. ¶ 5). ; and that prior to this motion, he provided all of the documents Plaintiff is requesting. (Id. ¶ 6).

It appears from the declarations submitted in opposition to the motions that Defendants’ failure to comply with the prior court order was not “willful,” but rather, a result of attorney Michael Lewis’ neglect. Further, the responses were purportedly produced, making this motion moot. Thus, the motions for terminating sanctions are denied. Attorney Michael Lewis is ordered to pay monetary sanctions of $1,120.00 to counsel for Plaintiff within 10 days as reasonable attorney’s fees for having to bring these motions. In addition, any discovery responses that remain outstanding at the time of the hearing are ordered to be provided to counsel for Plaintiff within 10 days.