Case Number: BC668165 Hearing Date: September 09, 2019 Dept: 4A

Motion for Terminating Sanctions

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On July 11, 2019, Plaintiff Frederick Sahng Ho Shin (“Plaintiff”) filed a complaint against Defendant Erin Rosaire (“Defendant”) alleging negligence and negligence per se for an automobile collision that occurred on June 18, 2016.

On May 20, 2019, the Court ordered Plaintiff to produce further verified responses, without objection, to requests for production numbers 45 to 48 and 50 to 79 in Defendant’s Demand for Production (Set Two).

On July 31, 2019, Defendant filed a motion for terminating sanctions against Plaintiff pursuant to California Code of Civil Procedure section 2023.030.

Trial is set for November, 12, 2020.

PARTY’S REQUEST

Defendant requests that the Court impose terminating sanctions against Plaintiff for his failure to comply with a May 20, 2019 Court order.

Defendant also requests that the Court impose $519 in monetary sanctions against Plaintiff to compensate for the expense of bringing this motion.

LEGAL STANDARD

If a party fails to comply with a court order compelling a further response to a request for production, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc. § 2031.310, subd. (i).) California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

DISCUSSION

On May 20, 2019, the Court ordered Plaintiff to produce further verified responses, without objection, to requests for production numbers 45 to 48 and 50 to 79 in Defendant’s Demand for Production (Set Two). (Lafer Decl., ¶ 4, Exh. C.) Plaintiff’s further responses suggested only non-privileged documents were considered, implying an objection on the ground of privilege. (Lafer Decl., ¶ 6, Exh. E.)

The Court finds terminating sanctions are not appropriate. While it is true that Plaintiff has disobeyed a Court Order, the Court Order was partially obeyed in the sense that Plaintiff provided a supplemental response as to non-privileged documents. Plaintiff’s conduct has not descended to the level that would necessitate the ultimate sanction of termination. Rather, Plaintiff’s conduct warrants an additional monetary sanction and another order compelling further responses.

The Court finds an additional monetary sanction is appropriate. Plaintiff’s failure to abide by the May 20, 2019 Court order has delayed the resolution of this action. Defendant’s request of $519 in sanctions against Plaintiff consists of 1 hours in preparing this motion and 2 hours in traveling to and appearing at the hearing at a rate of $143 an hour, plus $90 in for a filing fee, parking fee, and miscellaneous traveling expenses. The Court finds this to be a reasonable amount of sanctions to be imposed against Plaintiff and Plaintiff’s counsel of record, jointly and severally, for failing to abide by the May 20, 2019 Court order.

The motion is GRANTED in part and DENIED in part.

Plaintiff and Plaintiff’s counsel of record are ordered to pay Defendant $519, jointly and severally, within 30 days of the date of this order.

Plaintiff is ordered to abide by the Court’s May 20, 2019 order compelling verified and objection-free discovery responses within 30 days of the date of this order, including by producing any documents that might have been deemed privileged if Plaintiff had timely asserted whatever objections that were appropriate.

Defendant is ordered to give notice of this ruling.