Williams v. Ferris CASE NO. 112CV234949
DATE: 27 June 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 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.
On 27 June 2014, the motion of Plaintiff seeking monetary, issue, evidence and terminating sanctions was argued and submitted.
Defendants did not file formal opposition to the motion.

Statement of Facts

Plaintiff Lori Williams has occupied 1026 Yorktown Drive, in Sunnyvale (“Property”), and equitably owned the Property since 2005. Plaintiff paid loan payments for two purchase money loans for the Property. Plaintiff alleges Defendant Michael Ferris, through a series of misinterpretations, convinced Plaintiff to become the borrower of record for the two purchase money loans, the bare legal owner of the Property, and the potential recipient of a significant sum of money should the Property be sold through nonjudicial foreclosure. Plaintiff filed this current suit to protect her alleged rights to the property and recover damages.

Discovery Dispute

On 17 June 2013 Plaintiff first provided Defendant with written discovery requests. On 12 December 2013, Plaintiff served on Defendant demands for inspection of documents and a set of requests for admissions. After numerous extensions from Plaintiff’s counsel, totaling more than a year, Defendant has still failed to produce any discovery responses.
On 14 April 2014 this court ordered Defendant to produce responses to Plaintiff’s written discovery. Even in the face of this order, Defendant continues to fail to produce any discovery responses.

Plaintiff requests monetary, issue, evidentiary and terminating sanctions in light of Defendant’s persistent failure to produce written discovery; even in the face of a court order dated 14 April 2014.

Analysis

Plaintiff Lori Williams makes a request for monetary, issue, evidentiary and terminating sanctions. The request is code-compliant.
In support of their requests for sanctions Plaintiff cites California Code of Civil Procedure 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.
Plaintiff further cites section 2023.030, which provides that sanctions ma
y 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, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.
Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order. (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)

Concerning the monetary sanctions demand, the Defendant has not unsuccessfully opposed the Plaintiff’s motions. (Code Civ. Proc. § 2030.290; 2031.300). Therefore, reliance on § 2030.290 and § 2031.300 for monetary sanctions is inapplicable in this case because the Defendant has not unsuccessfully opposed the Plaintiff’s motion. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

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).

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). Misuses of the discovery process include but are not limited to “failing to respond or to submit to an authorized method of discovery [and] disobeying a court order to provide discovery. (Code Civ. Pro. § 2023.010).

“If a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction…lieu of, or in addition to, that sanction, the court may impose a monetary sanction.” (Code Civ. Proc. § 2031.310(i)). “Absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc. § 2031.060(i)). The exact circumstances in which sanctions may be granted varies based on the type of sanctions.

Monetary Sanctions

The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. (See Code Civ. Pro. § 2030.290(c) (Imposing monetary sanctions for a motion to compel answers to interrogatories); Code Civ. Pro. § 2031.300(c) (Imposing monetary sanctions against losing party in motion to compel response to inspection demand)). However, where the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust” no monetary sanctions shall be imposed. (Code Civ. Proc. § 2023.030(a)). 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.

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49). Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551).

Plaintiffs are reminded that speculative costs are not permissible in requesting monetary sanctions. With this in mind, their request for $812.50 for anticipated costs cannot granted. However, as there was no opposition filed and Rule of Court 3.1348(a) was not cited by Plaintiff, monetary sanctions are DENIED.

Non-Monetary Sanctions

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., 9 Cal.App.3d 579, 587 (1970)).

Defendant has failed to comply this Court’s 14 April 2014 order to compel responses to Plaintiff’s written discovery. Defendants were noticed of this order combined with their ability to comply with it renders this failure willful as per Deyo. Thus, non-monetary sanctions are appropriate here.

Evidentiary Sanctions

Where evidentiary sanctions are appropriate under the two-part general standard for non-monetary sanctions explained above, the Court may prohibit a party from introducing designated matters in evidence. (See Code Civ. Pro. § 2023.030(c)). (Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including evidentiary sanctions); Code Civ. Pro. § 2030.290(c))(Regarding evidentiary sanctions in the case of motions for responses to interrogatories); Code Civ. Pro. § 2031.300(c)(Regarding evidentiary sanctions in the case of motions for demands for inspection)). The sanctions must be proportionate to the conduct that is being sanctioned. (See McGinty v. Superior Court (6th Dist. 1994) 26 Cal. App. 4th 204, 211). Strong evidence of the appropriateness of evidentiary sanctions can include: a long history of abuse of process by the non-moving party, continuous willful obstructive conduct by the non-moving party, or egregious interference with the opposing party’s ability to make a case. (See Id. At 212). The Court should consider the impact of excluding the evidence at trial and the extent to which it prejudices the sanctioned party in determining appropriateness. (See Id. at 212-213). However, the fact that a sanction is seriously detrimental to the sanctioned party does not itself make an evidentiary sanction inappropriate. (See Pate v. Channel Lumber Co. (1997) 51 Cal. App. 4th 1447, 1455). This is because the detrimental effects of an evidentiary sanction are incidental to the proper objective of appropriate evidentiary sanctions. (See Id.).

Here, evidentiary sanctions are appropriate under the two part standard discussed above. The Defendant’s situation is further exacerbated by the duration and manner in which responses where refused. Accordingly, the evidentiary sanctions requested by Plaintiff are GRANTED.

Issue Sanctions

Where non-monetary sanctions are appropriate, “the court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.” (Cal. Civ. Proc. § 2023.030(b)). “The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Id.). Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including issue sanctions. (See Code Civ. Pro. § 2030.290(c))(Regarding issue sanctions in the case of motions for responses to interrogatories); Code Civ. Pro. § 2031.300(c)(Regarding issue sanctions in the case of motions for demands for inspection)).

Here, evidentiary sanctions are appropriate under the two part standard discussed above. The Defendant’s situation is further exacerbated by the duration and manner in which responses where refused. Accordingly, the issue sanctions requested by Plaintiff are GRANTED.

Terminating Sanctions

Code of Civil Procedure, § 2023.030(d) 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. (Code Civ. Pro. § 2023.030(d)). Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including terminating sanctions. (See Code Civ. Pro. § 2030.290(c))(Regarding terminating sanctions in the case of motions for responses to interrogatories); Code Civ. Pro. § 2031.300(c)(Regarding terminating sanctions in the case of motions for demands for inspection)).

However, 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).

Here, terminating sanctions are appropriate under the two part standard discussed above. Defendant has behaved in a manner consistent with Van Sickle and Doppes in their abuse of the discovery system. Their failure to respond even in the face of a court order implies that any sanction less than terminating sanctions would not produce compliance. Accordingly, the terminating sanctions requested by the Plaintiff are GRANTED.

Order

Accordingly, the issue, evidentiary and terminating sanctions requested by Plaintiff for failure to comply with the court’s order are GRANTED.
The request for monetary sanctions in the amount of $4,737.50 is DENIED.