Aaron Himmler v. Lidia Giles, Senzala Inc. CASE NO. 111CV204991
DATE: 15 May 2014 TIME: 9:00 LINE NUMBER: 1
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 Wednesday 14 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 15 May 2014, the motion of Plaintiff Aaron Himmler (“Himmler”) to strike answer filed by defendants Lidia Giles (“Giles”) and Senzala, Inc. (“Senzala”), dismiss cross-complaint filed by Giles, enter the defaults of Giles and Senzala, and for monetary sanctions was argued and submitted.

Defendants Giles and Senzala did not file formal opposition to the motion.

CASE BACKGROUND

The pending action arises out of a business transaction between Himmler and Giles/Senzala that existed from later October 2010 through April 2011.

DISCOVERY DISPUTE

On January 2013, Himmler served form interrogatories, specially prepared form interrogatories, and requests for production of documents on defendants Lidia Giles and Senzala, Inc.

After mediation, both parties agreed that so long as Giles and Senzala produced the information and documents agreed on, they did not need to produce formal discovery. After failed attempts on the part of Himmler to obtain the agreed discovery, Himmler informed Giles and Senzala that they would have to produce formal responses to the propounded discovery. Giles and Senzala agreed to formal responses.

On April 29, 2013, counsel for Giles and Senzala, Robert Anderson, sent an email in which he intended to get all of the responses by the end of the week.

On May 15, 2013, Mr. Anderson in an email indicated that he would try to get the responses that very day. Defendants failed to provide and response to form interrogatories, specially prepared interrogatories, and requests for production of documents.

Giles and Senzala also indicated that they could not provide much of the information sought because their accountant had the relevant information. Himmler served a subpoena on Cynthia Young Business & Tax on June 10, 2013. Ms. Young informed Himmler that she did not have any documents for the calendar year of 2011, and produced documents from 2010.

On January 9, 2014, Himmler filed a motion to compel responses to discovery from Giles and Senzala, which was unopposed. This Court granted the motion on February 28, 2014. Giles and Senzala were supposed to comply with the order by March 28, 2014, however they did not.

On March 31, counsel for Himmler (Marlis McAllister) telephoned counsel for Giles/Senzala (Mr. Anderson) to inquire whether Giles and Senzala intended to comply with the order. After leaving a voice message, Ms. McAllister did not receive any response.

The present motion was filed on 21 April 2014.

DISCUSSION

I. Motion to Strike Answer Filed by Defendants Giles and Senzala, Dismiss the cross-complaint filed by Giles, and Enter Defaults of Giles and Senzala

A discovery sanction should be tailored to the harm caused by the particular abuse. (Collisson & Kaplan v. Hartunian, et al. (1994) 21 Cal. App. 4th 1611, 1619.). It should be noted that it is improper to dismiss or impose a default sanction because the party has not paid sanctions previously ordered. (See Newland v. Superior Court (Sugasawara) (1995) 40 Cal.App.4th 608, 615-“a terminating sanction issued solely because of a failure to pay a monetary sanction is never justified.”)

Disobeying a court order to provide discovery constitutes a misuse of the discovery process and the Court may impose whatever sanctions are just against the disobedient party, including terminating sanctions and monetary sanctions. Code of Civil Procedure, § 2023.030. It is the moving party’s burden to show the failure to obey earlier discovery orders. Thereafter, the burden shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal. App. 3d 195, 201.)

Since Defendants have failed to oppose this motion, there is no showing of good cause.

The requests are GRANTED. The Answer and Cross-Complaint of Defendants are STRICKEN. The Clerk of this Court is directly to enter defaults against Defendants. Code of Civil Procedure, §§ 2023.010(g), 2023.030, 2030.300(e), and 2031.310(i). Laguna Auto Body v. Farmers Inc. Exchange (1991) 231 Cal. App. 3d 481, 491.

II. Monetary Sanctions

Plaintiff Himmler makes a request for monetary sanctions in the amount of $4,835. The request is code-compliant.

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.”

This Court will not award sanction in the amount of $4,835. Instead the Court will award sanctions in the amount of $3,210. This Court will decline to award the anticipated $1,625 in fees for Plaintiff’s counsel reviewing the opposing motion and appearing in court. Sanctions are only awarded for expenses actually incurred and not for anticipated costs. Tucker v. Pacific Bell Mobile Services, (2010) 186 Cal. App. 4th 1548, 1551. The Court will award 9.6 hours of reasonable attorney’s fees for the preparation of this motion in the amount of $325 per hour. The court will also award Plaintiff the $90.00 incurred filing fee.

III. Order

Tthe request of Plaintiff for terminating sanctions is GRANTED. The Answer and Cross-Complaint of Defendants are STRICKEN. The Clerk of this Court is directly to enter defaults against Defendants

The request of Plaintiff for Monetary Sanctions against Defendants is GRANTED. Defendants Giles and Senzala shall pay monetary sanctions in the amount of $3,210 to Plaintiff within 20 days of this order.