Case Number: BC653650 Hearing Date: December 19, 2019 Dept: 4A

Motion for Terminating Sanctions, or in the Alternative, Issue Sanctions and Deeming Request For Admissions as True

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On March 8, 2017, Plaintiff Henry Barragan, by and through his guardian ad litem Lilianna Rodriguez, (“Plaintiff”) filed a complaint against Defendants County of Los Angeles, Bellflower Unified School District, and Thomas Jefferson Elementary School alleging premises liability and negligence for negligent maintenance and supervision on March 8, 2016.

On January 19, 2018, the Court dismissed Defendant County of Los Angeles without prejudice.

On March 15, 2019, Plaintiff filed a first amendment complaint to allege additional facts.

On December 19, 2019, Defendant Bellflower Unified School District filed a motion for terminating sanctions against Plaintiff pursuant to California Code of Civil Procedure section 2023.030.

Trial is set for September 24, 2020.

PARTY’S REQUEST

Defendant Bellflower Unified School District (“Moving Defendant”) asks the Court to impose terminating sanctions against Plaintiff for his failure to comply with a May 1, 2019 Court order.

In the alternative, Moving Defendant asks the Court to: (1) impose issue sanctions that none of Moving Defendant’s employees were aware of Plaintiff’s bullying, Moving Defendant’s policies regarding bullying were reasonable, and Moving Defendant’s discipline of students who committed physical assaults was reasonable; and (2) deem Moving Defendant’s Request for Admissions number 2, 4, 13, 14, and 15 as admitted against Plaintiff.

Moving Defendant also requests that Court impose $3,500 in monetary sanctions against Plaintiff for bringing this motion.

LEGAL STANDARD

If a party fails to comply with a court order compelling a further response to a request for production, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc. § 2031.310, subd. (i).) California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

DISCUSSION

On May 1, 2019, the Court ordered Plaintiff to produce further verified responses, without objection, to: (1) requests 7, 8, and 12 in Request for Admissions (Set One) along with any concomitant answers to interrogatory 17.1 in Form Interrogatories (Set One) within 20 days; (2) interrogatories 1, 2, 3, 5, 7, 9, 10, 13, and 14 in Special Interrogatories (Set One) within 20 days of the hearing; (3) requests 2, 4, 13, 14, and 15 in Request for Admissions (Set One) concomitant answers to interrogatory 17.1 in Form Interrogatories (Set One) by October 24, 2019. (Roche Decl., ¶ 3, Exh. C.) With respect to the latter discovery that was due to be answered by October 24, 2019, the Court explicitly “denie[d] the specific relief requested by [Moving Defendant] and order[ed] instead that Barragan shall have six (6) months to conduct further discovery and investigation on the pertinent issues,” before having to answer those discovery requests. (Id.)

Plaintiff argues its responses to RFAs 2, 4, 13, 14 and 15 and Form Interrogatory 17.1 were contingent on Moving Defendant providing Plaintiff with necessary information to answer Moving Defendant’s propounded Requests for Admissions. (Yeremian Decl., ¶ 4.) Following the Court’s May 1, 2019, Plaintiff propounded written discovery to inquire into the issues raised by the outstanding discovery. On September 19, 2019, the Court directed Moving Defendant to provide relevant discovery responses to Plaintiff, and Plaintiff’s then pending motion to compel was taken off calendar. (Yermian Decl., ¶ 8.) Moving Defendant provided the supplemental responses on November 6, 2019, after Plaintiff’s October 24, 2019 deadline to comply with the May 1, 2019 order. (Yeremian Decl., ¶ 9, Exh. C.)

The Court finds Moving Defendant’s motion must be denied. Under the May 1, 2019 order, Plaintiff was charged with conducting discovery to secure whatever information and documents he needed before having to respond to the outstanding discovery that was to be answered by October 24, 2019. In resolving their discovery dispute over Moving Defendant’s responses to Plaintiff’s discovery, the parties apparently made a mistake in setting the date for Moving Defendant’s supplemental responses. Moving Defendant’s supplemental responses should have been served before the due date for Plaintiff’s discovery answers under the May 1, 2019 order.

Counsel for Moving Defendant states in a reply declaration that Moving Defendant’s responses were served on September 19, 2019. (Supp. Roche Decl., ¶ 3.) But this is contradicted by the proofs of service attached to the relevant responses submitted as Exhibit C to Plaintiff’s counsel’s declaration. Those proofs of service show the responses were served on November 4, 2019. Accordingly, Plaintiff was unable to comply with the May 1, 2019 order by the October 24, 2019 deadline because of the later service of Moving Defendant’s long anticipated discovery responses. Under these circumstances, it would be extremely unfair to impose any sanctions on Plaintiff for their late discovery responses.

Nevertheless, the Court finds it is in the interest of justice to compel Plaintiff’s compliance with the May 1, 2019 order again.

The motion is DENIED.

Plaintiff is ordered to abide by the Court’s May 1, 2019 order by serving the outstanding further verified and objection-free discovery responses within 20 days of this ruling.

Moving Defendant is ordered to give notice of this ruling.