Maldonado v. City of San Jose CASE NO. 113CV245517
DATE: 13 June May 2014 TIME: 9:00 LINE NUMBER: 9
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of Defendant for Motion for Terminating Sanctions for Plaintiff’s Failure to Comply with Court’s Order was argued and submitted.

Defendants did not file formal opposition to the motion.

Statement of Facts

This action is regarding a personal injury allegedly sustained by Plaintiff on 3 June 2012. Plaintiff filed a complaint against Defendants on 29 April 2013.

On 12 September 2013, Defendant propounded and served its Requests for Production of Documents, Form Interrogatories, and Statement of Damages to the Plaintiff. On 8 October 2013, Defendants sent a meet and confer letter to Plaintiff, regarding the particulars of the case and Plaintiff’s overdue response to Defendant’s Request for Statement of Damages. Plaintiff never responded to this letter.

On 29 October 2013, Defendants sent a letter to the Plaintiff demanding responses to all outstanding discovery requests. Defendants also alerted Plaintiff that if they did not receive responses within seven days, Defendants would file a Motion to Compel. Plaintiff never responded to this letter.

On 14 November 2013, Defendants sent one more meet and confer letter to Plaintiff regarding the outstanding discovery requests. That same day Defendant’s received a call from Plaintiff’s counsel, Ronald Berki, indicating the intended to file a motion to remove himself as attorney of record. On 26 November 2013, Mr. Berki filed a notice of motion to be relieved as Plaintiff’s counsel as he believed his client’s claim was without merit. This motion was granted by this Court of 14 January 2014.

On 19 November 2013, Defendants filed a Motion to Compel Responses. Plaintiff did not file formal opposition to the motion. This motion was granted by this Court on 21 January 2014. The order required compliance within 20 days.

Plaintiff has still not responded to any of Defendants’ outstanding discovery requests.

Defendants have been unable to reach the Plaintiff via the telephone number he provided.

Discovery Dispute

Defendants filed a Notice of Motion for Terminating Sanctions for Plaintiff’s Failure to Comply with the Court’s Order on 7 May 2014. They are requesting today that the Court order terminating sanctions dismissing the entirety of the action with prejudice.

They are also requesting monetary sanctions in the amount of $375 for the one and a half hours spent attempting to correspond with the Plaintiff and reach a resolution, the one and a half hours spent preparing the motion as well as for the one hour they anticipate attending the hearing for this motion.

Analysis

A. Sanctions Generally

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.” (See Rule of Court 2.30).

B. Terminating Sanctions

The Court may impose monetary, evidentiary, contempt or terminating sanctions where a party is engaging in conduct that is a misuse of the discovery process. (See Code Civ. Pro. § 2023.030). Code of Civil Procedure § 2030.030 further states that: “the Court may impose terminating sanctions by: [an] order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process… [an] order staying further proceedings by that party until an order for discovery is obeyed…[an] order dismissing the action, or any part of the action, of that party…[or an] order rendering a judgment by default against that party. (Id.) Where a party fails to comply with a granted order compelling further response to interrogatories, the Court may impose sanctions including terminating sanctions. (See Code Civ. Pro. § 2030.300(e)).

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 of appeal has indicated that 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).

Additionally, 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). Put another way, 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 an incremental bases depending upon the severity of the violation. (See Doppes 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. (internal quotation marks and citations omitted)).

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).

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 (Granting terminating sanctions where a lawyer failed to respond to numerous special interrogatories and demands for production of documents, failed to respond to motion to compel discovery, failed to obey a court order to provide discovery, and failed to respond to demands for production even after filing motion for relief from default.); Doppes 174 Cal. App. 4th at 992 (Holding that trial court abused its discretion in failing to grant terminating sanctions against defendant who engaged in persistent and serious misuse of the discovery process); Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279 (Holding that terminating sanctions were not an abuse of discretion where appellant repeatedly failed to answer discovery requests despite numerous extensions sought and granted, the issuance of court orders and monetary sanctions); 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)). Where these conditions are met, the Court is justified in ordering terminating sanctions. (See Id).

The Plaintiff was provided notice of both this Court’s order and Defendants’ numerous discovery requests and was capable of making a reply. This shows that Plaintiiff’s behavior is willful under Deyo as Plaintiff knew of his discovery obligations but still failed to reply despite having the ability to do so. This long history of complete failure to respond to Defendants’ discovery requests and correspondence seeking resolution also constitute a history of abuse of the discovery process.

This history, alongside the Plaintiff’s failure to make any sort of response to Defendants’ correspondence in the face of a court order to do so, is strong evidence that a sanction less severe than terminating sanctions would not produce compliance with the discovery rules on the part of the Plaintiff.

Thus, based on the foregoing reasons and through the explicit authority provided by Code of Civil Procedure § 2030.300(e), this court has the authority to grant terminating sanctions in this case. The request for terminating sanctions is GRANTED.

C. Monetary Sanctions

“The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civil Procedure § 2030.300(d)). Where there are no opposition papers filed, the proper source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition.

Since Plaintiff did not make or oppose the motion, the request for monetary sanctions is DENIED.

Order

The request for terminating sanctions is GRANTED. The request for monetary sanctions is DENIED.