Case Name: Kathleen Newton vs Samuel Martin et al
Case No.: 17CV319397

On September 12, 2019, Defendants Samuel Martin and MB Custom Builders (“Defendants”) filed a motion for terminating sanctions against Plaintiff Kathleen Newton (“Plaintiff”) following the Court’s grant of orders to compel responses to discovery, on the grounds that Plaintiff did not serve responses to the discovery within the time period ordered. Defendants also sought monetary sanctions against “opposing party and/or opposing party’s attorney.”
By order dated July 8, 2019, the Court ordered Plaintiff to serve responses to Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One, with responses to be served within twenty days after Defendants had served notice of entry of the order. The order also deemed requests for admissions admitted. The order was served by Defendants on July 15, 2019, but no responses have been served and this motion for terminating sanctions was filed. The motion was timely and properly served.

Although a declaration was submitted in support of the motion, the relevant discovery requests are not attached (although the original proofs of service are attached).

Defendants’ original notice of motion filed on September 12, 2019 sought only terminating sanctions. On October 2, 2019, Defendants filed their First Amended Notice of Motion which does not tell the Court what was “amended,” but it appears that the notice of motion now asks for an alternative order that Plaintiff be precluded from introducing evidence that should have been produced in response to the discovery order but was not. The notice of motion does not mention issue sanctions. Again, the original discovery requests are not attached. “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.” (Code of Civ. Proc. §2023.040, emphasis added.)

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 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).

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). 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 incremental bases depending upon the severity of the violation. (See Doppes, supra, 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.) Here, in the original notice of motion, Defendant sought only terminating sanctions, without otherwise establishing or considering whether other sanctions would first be appropriate. The Amended Notice of Motion only mentions evidence sanctions as an alternative. To seek evidence sanctions, Defendants would have to specify the facts or evidence that should be determined against the party based upon the information that would have been obtained by the responses to discovery. (CCP 2023.030(b).)

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; 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).) “[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) The Court is not confident that the Plaintiff ever knew about the discovery requests or the discovery order.

Accordingly, the motion for terminating sanctions is DENIED without prejudice.

“The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code of Civil Procedure section 2023.030(c).) Although Defendants seek evidence sanctions as an alternative in the Amended Notice of Motion, Defendants do not advise the Court or Plaintiff what evidence it seeks to exclude, which is necessary to comport with due process principles. As noted above, non-monetary sanctions are appropriate to enable the party seeking discovery to obtain the objects of the discovery sought, but not to place the prevailing party in a better position than if discovery had been obtained. As Defendants have not stated anywhere in their motion what evidence should be excluded, that would have been obtained had the discovery been provided, the motion for evidence sanctions is DENIED without prejudice.

Defendants also seek monetary sanctions in a variety of categories. First, Defendants seek monetary sanctions for drafting the discovery and then meet and confer efforts; sanctions for the prior motion where no sanctions were ordered; for the present motion; and for preparation of reply papers and attendance at a hearing even though no opposition was filed. The Court does not award sanctions for time spent meeting and conferring or expenses not yet incurred. (See Code Civ. Proc., § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Nothing in the Code authorizes sanctions for drafting discovery, only for time spent to prepare the actual motion.

The motion is not adequately supported and is not code-compliant as it fails to provide the billing rates of all staff preparing the motion, or clearly lay out who did what tasks and how much time was spent. The total amount of time sought of $10,659.39 for an unopposed motion is on its face excessive, and there are duplicate amounts sought for the same activity (paragraph 16 of the Winters declaration which describes preparation of the motion; paragraph 17, additional duplicative time spent to prepare the motion). Moreover, the Court has not granted the relief sought.

The Court will award the total sum of $2000 in sanctions for preparation of the motion for sanctions, payable by attorney Carlos Martinez, only.

Moving party shall prepare the order.

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