30-2016-869388

Soldan VS High End Development Group, LLC

Motion for Terminating Sanctions

Imposition of discovery sanctions lies in the discretion of the trial court. Courts have recognized that a terminating sanction is to be used sparingly. A court must be cautious when imposing a terminating sanction because it eliminates a party’s fundamental right to a trial. The discovery statutes evince an incremental approach before resorting to the ultimate sanction of termination. Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604; Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 991-93.

Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.

Only when a party persists in disobeying orders of the court and it is clear that lesser sanctions will be ineffective is the ultimate sanction of striking the answer and entering a default justified. Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771; Doppes, at 993-4; Liberty Mut. Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.

Applying the above, Plaintiff Kayla Ryan’s Motion for terminating sanctions does not appear to be appropriate to grant. The order of June 23rd granted certain motions to compel in favor of the other plaintiff, Christopher Soldan. If the order was not complied with, then Christopher Soldan may have a basis to seek relief. However, there is no evidence of a failure to comply with discovery from plaintiff, Ryan. Therefore, as to plaintiff Kayla Ryan, the Motion is denied.

The moving papers complain of delays in the case, starting with Defendant High End Development Group LLC having defaulted early on. Any matter related to the default is not a basis to issue a discovery sanction because it is not a misuse of discovery. (See CCP 2023.010, 2023.030). Moreover, the default was set aside by the Court based on a stipulation so that matter is resolved. (ROA 31).

The moving papers complain that Defendant’s Answer was verified by an attorney and it is not properly verified. (See ROA 39). Any deficiency in the answer must be raised by an appropriate pleading motion or other attack of the pleading. See, e.g., Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761 (“[T]he proper objection where a party fails to verify a pleading is a motion to strike which may be made only upon timely notice and provides for hearing and extension of time to answer.”). A discovery sanction is not the remedy for any failure to properly verify an answer. [See CCP §§2023.010, 2023.030).

The moving papers also complain that Defendant has not paid the monetary sanctions that were ordered in the June 23rd order. According to case law, it is an abuse of discretion to dismiss the action solely on the ground that the other party has failed to pay monetary sanctions ordered by the court. Orders awarding monetary sanctions are enforceable through the execution of judgment laws, so that is the appropriate avenue for Plaintiff to pursue. Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.

Next, plaintiff Soldan complains about discovery. On June 23rd, this Court heard his motions to compel Defendant High End Development to respond to his Form Interrogatories set one, to his Special Interrogatories set one, to his RFPDs set one, and his RFAs set one. Contrary to the statements in the present moving papers (see Mot. at 5:7 and Nicholson Dec. ¶ 24), the Court did not grant all four of the motions. The minute order of June 23rd (ROA 91) states that the Court granted three of the motions: “Defendant High End Development Group shall provide verified responses, without objections, to Plaintiff’s Form Interrogatories Set one, to Plaintiff’s Special Interrogatories Set one, and to Plaintiff’s Request for Production of Documents Set One, within 14 days after a notice of ruling is served”. [See ROA 91].

As to the fourth motion, it appears that the Court did not grant that motion [see ROA 91]. The reason may be evident in the statements in the current moving papers, which say that the Defendant had served the RFA responses, before the last hearing. [See present Motion, at Nicholson Dec. ¶ 22]. Because of the fatal effect of deeming RFAs admitted, a motion asking for that relief, must be denied, if the responding party served substantially compliant responses before the hearing. [See CCP §2033.280 (a)(1); St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776, 780, 782-84]. That may be why the fourth motion was not granted.

In the present motion, Plaintiff indicates he received Defendant High End Development’s RFAs set-one responses, and Form Interrog. set-one responses, on June 22nd. [See Moving Nicholson Dec. ¶ 22 and Exhibit 8 and 9] Plaintiff complains that the responses are confusing and deficient, as the title of the document says they are “Evon Halaka’s” Responses. He or she is not a party to the case.

On the other hand, in accordance with the relevant statutes, see CCP §§2033.310(c) and 2030.210(b), the opening paragraphs of the responses do identity the responding party as Defendant, “High End Development Group LLC”. [See Moving Exhibit 8 and 9].

The responses appear to be confusing and contains mistakes, but the remedy is not a terminating sanction.

Plaintiff also complains that “Evon Halaka” verified the responses. Under CCP §2030.250, “The party to whom the interrogatories are directed shall sign the response under oath . . . [¶] If that party is a … corporation…, one of its officers or agents shall sign the response under oath on behalf of that party.” Perhaps Halaka is the agent or officer. It is something that Plaintiff reasonably could have inquired of in a meet and confer.

Plaintiff’s remedy more appropriately is to bring a motion to compel a further response; not a terminating sanction. Moreover, the Code requires the moving party to meet and confer with the opponent to attempt to resolve the matter informally, before proceeding to the Court. (See CCP 2030.300, 2033.290).

There is another issue that creates hesitation as to granting any terminating sanction. The order of June 23rd, stated that Defendant “shall provide verified responses….within 14 days after a notice of ruling is served”. [ROA 91]. In the moving declaration, counsel for Plaintiff does not aver that he served a notice of ruling. The declaration seems to characterize the Court as having ordered the responses to be given “within 14 days of the Order”. (Moving Nicholson Decl. ¶ 24). But the June 23rd order did not so indicate, rather it said a notice of ruling was to be served.

Because the literal terms of the Court’s order are not shown to have been violated, the Court would not hesitate before issuing such a drastic remedy as a terminating sanction. Plaintiff may be right that notice was imparted to the Defendant, because the clerk served the parties with a copy of the minute order of June 23rd (see ROA 92, Clerk’s Cert. Service). However, the order said the responses were due within 14 days after “a notice of ruling” is served. A notice of ruling is prepared by the parties, not the clerk. [See CCP § 1019.5 (“When a motion is granted or denied, unless the court otherwise orders, notice of the court’s decision or order shall be given by the prevailing party to all other parties or their attorneys, in the manner provided in this chapter, unless notice is waived by all parties in open court and is entered in the minutes.”)].

For the reasons stated above, the Motion is denied but without prejudice to any other appropriate motion. The request for additional monetary sanctions is denied.

The above said, the Court strongly encourages the Defendant High End Development Group LLC, to cooperate with Plaintiff in discovery and provide any overdue or corrected responses.