On 14 February 2014, the motion of plaintiff Joyce Cato (“Plaintiff”) for terminating sanctions, evidence sanctions, issue sanctions, and/or monetary sanctions was argued and submitted. Defendant East Side Union High School District (“Defendant”) did not file formal opposition to the motion.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).
Background:
Plaintiff was a teacher working in the East Side Union High School District. Plaintiff alleges that Defendant constructively terminated her by assigning Plaintiff to teach algebra classes contrary to Plaintiff’s teaching specialization. After three years of being assigned algebra classes, Plaintiff resigned.
Discovery Dispute
In June of 2013, Plaintiff served multiple forms of discovery upon Defendant including Custodian of Records Deposition Notice, Form Interrogatories, Special Interrogatories, Contention Interrogatories, and an Inspection Demand for Documents.
Defendant served boilerplate objections, without any substantive responses.
On 26 July 2013, counsel for the parties met and conferred in person and negotiated an agreement seemingly resolving the parties’ discovery issues. On 29 July 2013, counsel for Plaintiff reduced the discovery agreement to a writing. (See Declaration of Louis Spitters, Exh. B.)
On 20 September 2013, the Hon Kenneth Barnum issued an order requiring Defendant to serve verified responses to discovery by 10 October 2013 and for monetary sanctions. (See 10 October 2013 Discovery Order.)
On 15 November 2013, this Court issued a second order requiring Defendant to provide code-compliant responses by 25 November 2013. In addition, the Court ordered the parties to agree on expert disclosures by 2 December 2013. (See 15 November 2013 Discovery Order.)
The Court had relied on representations of counsel for Defendant that some responses were served just prior to the hearing date. (See Declaration of Louis Spitters, ¶ 8.)
Defendant’s responses were not verified.
The trial date for these matters was continued on two separate occasions. Trial is now set for March 10, 2014.
Discussion:
Case sanctions may be imposed against a party for egregious misuse of the discovery process. See Code of Civil Procedure 2023.030(b)-(d). These sanctions may include issue sanctions, which designate particular facts as established in favor of a particular party, evidence sanctions, which prohibit a party from introducing particular facts into evidence, or terminating sanctions, which strike a party’s pleading. Ibid. Misuses of the discovery process includes; failing to respond to an authorized use of discovery, disobeying a court order to provide discovery, and failing to meet and confer in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. See Code of Civil Procedure §§ 2023.010(d),(g), and (i).
A. Defendant’s Failure to Comply with Court Orders.
Defendant previously represented to the Court that Defendant had served responses prior to the hearing date of November 15, 2013. In a situation where a supplemental response is served after a motion to compel responses is filed, the court has substantial discretion to decide how to rule on the motion. Sinaiko Helathcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409. For example, the court might grant the motion if the supplemental response is not code-complaint, deny the motion as moot, take the matter off-calendar, or order the parties to meet and confer. Id.
As it turns out, Defendant’s supplemental responses were not code-compliant. Defendant had served responses prior to the hearing date, but Defendant’s responses were unverified. Unverified responses were tantamount to no responses at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.
On two separate occasions, the court has ordered Defendant to comply with Plaintiff’s discovery requests rather than imposing case sanctions. Disobeying these court orders is considered a misuse of the discovery process under Code of Civil Procedure § 2023.010(g). Furthermore, monetary sanctions were not sufficient in persuading Defendant to serve code-compliant responses.
B. Defendant’s Failure to Respond to Authorized Uses of Discovery.
In addition, to Defendant’s failure to provide responsive documents to inspection demands and verified responses to interrogatories, Defendant has failed to comply with Plaintiff’s deposition notices. Plaintiff properly noticed the depositions of Custodian of Records, Administrative Employees, Special Education Teachers and Witnesses, and Person Most Knowledgeable for August 2013 and January 2014. Defendant has consistently delayed and evaded the depositions of these witnesses. It is only now at this late hour, Defendant identified for the first time which of its employees would be appearing for the Custodian of Records and Person Most Knowledgeable Deposition. (See Supplemental Deposition of Louis Spitters, ¶ 5.)
C. Defendant’s Failure to Meet and Confer in a Reasonable and Good Faith Attempt to Resolve Discovery Issues.
The counsels for the parties met extensively in an informal attempt to resolve outstanding discovery issues in July of 2013. The parties appeared to have reached an agreement concerning the discovery responses Defendant is obligated to serve. Plaintiff refined certain discovery requests to help facilitate responses from Defendants. In exchange Defendant’s promised to respond. As described earlier Defendants have failed to respond. Counsel for Defendant has failed to comply with previous commitments to respond and now has offered no new commitments as to when discovery responses will be served. Defendant has been given multiple opportunities to correct all the outstanding discovery issues and has produced only minimal discovery.
Defendant’s persistent failure or willful refusal to comply with their discovery obligations warrants the imposition of case sanctions. Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1112. Plaintiff would be prejudiced if made to go to trial without having received the discovery she is entitled to by matter of right. The information requested in discovery is essential to Plaintiff’s case in chief and rebuttal to any claims of defense. Defendant was to produce documents pertaining to the events surrounding the teaching assignments given Ms. Cato and similarly situated Special Education teachers during the 2006 to 2010 time period. Defendant did not produce these documents. If those documents had been lost or destroyed Defendant could have produced or identified witnesses who have knowledge of the teaching assignments of special education teachers from 2006 to 2010. Plaintiff through special interrogatories requested the identities and contact information of former special education teachers, who may be able to testify about these matters. Defendant has failed to provide Plaintiff with this information.
D. Conclusion.
This Court finds that evidence sanctions are appropriate for Defendant’s misuse of the discovery process and denial of Plaintiff’s right to discovery. Evidence sanctions are not being issued as a punitive measure, but rather to place Plaintiff in a position as if discovery had been completed. Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 229. In such a circumstance the fruits of discovery will be construed as being entirely favorable to Plaintiff. Id. No other case sanction is appropriate at this time.
The motion of Plaintiff requesting evidence sanctions is GRANTED. The Court imposes the following evidence sanctions against Defendant:
1. Defendant is and shall be prevented from offering or admitting into evidence, either on Defendant’s case in chief or on cross-examination, any documents within the scope of Plaintiff’s Inspection Demand for Documents, Set Two.
2. Defendant is and shall be prevented from offering or admitting into evidence, either on Defendant’s case in chief or on cross-examination, testimony or documentary evidence, that Plaintiff’s teaching assignment for the 2009-2010 academic year complied with the No Child Left Behind law.
3. Defendant is and shall be prevented from offering or admitting into evidence, either on Defendant’s case in chief or on cross-examination, testimony or documentary evidence, contradicting Plaintiff’s claim that she was directed to teach the courses assigned to her for the 2009-2010 academic year or quit her position with the District.
Monetary Sanctions
Plaintiff makes a request for monetary sanctions. The request is code-compliant pursuant to Code of Civil Procedure § 2023.030. Under Code of Civil Procedure § 2023.030, the court may impose a monetary sanctions against a party who has engaged in the misuse of the discovery process. Plaintiff has identified multiple instances of the misuse of the discovery process including disobeying a lawful discovery order under Code of Civil Procedure § 2023.010(g).
Plaintiff’s request for monetary sanctions is GRANTED. Counsel for Plaintiff spent 8 hours preparing this motion. Counsel’s hourly rate for matters of this type is $300.00 per hour. Plaintiff has also incurred $90.00 in court costs associated with the filing of this motion. Defendant will pay counsel for Plaintiff $2,490.00 in monetary sanctions within 20 days of the filing of this Order.