Case Number: BC495390    Hearing Date: August 01, 2014    Dept: 34

Moving Party: Defendant Aida Rose LLC (“defendant”)

Resp. Party: Plaintiff Moses Cho (“plaintiff”)

Defendant’s motion for sanctions is DENIED.

PRELIMINARY COMMENTS:

As indicated below, the court is denying defendant’s motion for for sanctions. However, this should not be taken as an indication that the court is approving plaintiff’s counsel’s actions in this matter. On April 29, 2014, defendant filed her motion to compel; plaintiff did not even bother to oppose the motion. The court granted defendant’s motion to compel, and ordered sanctions.

Plaintiff has been, at best, dilatory in providing these discovery responses. Further, plaintiff’s counsel’s opposition to this motion for terminating sanctions is a total of one page long. Had defendant’s request for sanctions complied with the statute, the Court would have granted the sanctions requested.

BACKGROUND:

Plaintiff commenced this action on 11/9/12, against defendants for: (1) specific performance; (2) breach of written contract; (3) breach of implied covenant of good faith and fair dealing; (4) declaratory relief; and (5) injunctive relief. Plaintiff filed a first amended complaint (“FAC”) on 6/6/13. After the Court sustained defendant’s demurrer to the FAC in part, plaintiff filed a second amended complaint (“SAC”) on 4/28/14 alleging causes of action for: (1) specific performance; (2) breach of written contract; (3) fraud; (4) negligent misrepresentation; (5) interference with contract; (6) interference with prospective economic advantage; and (7) declaratory relief.

Plaintiff alleges that he entered into a lease for the subject premises in January 2006. (SAC ¶ 11.) The lease sets forth plaintiff’s right to purchase the property. (Id., ¶ 16.) Under the lease, plaintiff was given a right of first and second refusal. (Id., ¶¶ 16-17.) A Notice of Sale dated August 9, 2012, purported to set forth a single combined offer of $4,000,000.00 to purchase the subject property and another property. (Id., ¶ 23.) Plaintiff alleges that the Notice of Sale violated the terms of the lease agreement. (Ibid.) Plaintiff alleges Siegel improperly demanded that plaintiff expressly waive his rights to purchase by signing an “estoppel certificate,” which plaintiff refused to sign, resulting in Siegel serving a three-day notice to cure or quit. (Id., ¶¶ 24-25.) Siegel sold the property to the Buyers in December 2012. (Id., ¶ 32.)

On 4/29/14, the Court granted defendant’s unopposed motion to compel plaintiff to provide responses to defendant’s first sets of form interrogatories, special interrogatories, and requests for production. The Court imposed sanctions against plaintiff in the amount of $1,700.00. Plaintiff was ordered to provide the responses and pay the sanctions within 30 days.

ANALYSIS:

Defendant moves for an order to show cause why plaintiff should not be held in contempt and why the case should not be dismissed for disobeying the Court’s 4/29/14 order. Defendant also requests monetary sanctions in the amount of $5,290.00.

Terminating Sanctions are Not Warranted

Code of Civil Procedure section 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in the misuse of discovery. (Code Civ. Proc., § 2023.030(d)(1).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court’s orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a “drastic measure which should be employed with caution.” (Deyo, 84 Cal.App.3d at 793.) “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.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions “should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo, 84 Cal.App.3d at 793.) “[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.” (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

“A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions….: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327. But see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 [“willfulness is no longer a requirement for the imposition of discovery sanctions.”].)

On 4/29/14, the Court ordered plaintiff to provide verified responses, without objections, to defendant’s first sets of form interrogatories, special interrogatories, and requests for production. (See Schwartz Decl., Exh. A.) Defendant provides an e-mail from plaintiff’s counsel which includes copies of verified responses to the form interrogatories and requests for production, and an assertion that responses to the special interrogatories were “still under production.” (Id., Exh. C.) This e-mail was sent on 4/28/14. (Ibid.) Defense counsel declares that on 5/28/14 plaintiff’s counsel assured him that the special interrogatory responses would be forthcoming. (Id., ¶ 5.) When no interrogatory responses were provided by 6/16/14, defense counsel sent plaintiff’s counsel a letter demanding proper responses, responsive documents, and payment of the sanctions award by 6/20/14. (Id., ¶¶ 5-6, Exh. D.) Plaintiff had not provided responses as of the 6/25/14 filing of this motion. (Id., ¶ 7.) In the opposition, plaintiff’s counsel declares that he served interrogatory responses by e-mail and mail on 7/13/14 and 7/14/14. (McLachlan Decl., ¶ 5.)

Defendant has not sufficiently established that drastic sanctions are warranted at this time. It appears that plaintiff’s failure to provide responses was not in willful disobedience of the Court’s order because plaintiff did attempt to provide responses to some of the discovery. (See Schwartz Decl., Exh. C.) The responses to the requests for production did not contain objections, but defendant takes issue with the response that “non-privileged” documents will be produced. If plaintiff believes that the responses were not sufficient, plaintiff should have moved to compel further responses. Plaintiff’s counsel has asserted that responses to special interrogatories were subsequently served, and there is no showing that plaintiff previously completed the responses but refused to produce them.

At most defendant has shown that plaintiff failed to fully comply to one Court order. This is not sufficient to establish that plaintiff has willfully or repeatedly persisted in disobeying orders. Though lesser sanctions such as issue or evidentiary sanctions may be warranted, defendant has not moved for these sanctions.

Accordingly, defendant’s request for terminating sanctions is DENIED.

It is Not Necessary to Set an OSC re Contempt at this Time

The Court may “impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.” (Code Civ. Proc., § 2023.030(e).) “[A] contempt sanction requires proof of a willful failure to obey.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 8:855.)

Defendant has not sufficiently shown that plaintiff has engaged in a willful failure to obey the Court’s 4/29/14 order such that contempt sanctions are warranted. As discussed above, at most plaintiff has failed to fully comply with the order; plaintiff appears to have attempted to provide responses to most of the discovery and there is no showing that the failure to provide responses to the special interrogatories was willful.

Accordingly, defendant’s request for an OSC re contempt is DENIED.

Defendant’s Request for Monetary Sanctions Does not Comply with the Code

Defendant also seeks monetary sanctions in the amount of $5,290.00. Though this is a lesser sanction that could be warranted for plaintiff’s failure to fully comply with the 4/29/14 order, this request must be denied because it is not procedurally proper. “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 Civ. Proc., § 2023.040 [emphasis added].) The notice of defendant’s motion states: “Defendant further requests sanctions in the amount of $5,290, to compensate it for attorney’s fees incurred enforcing the April 29 Order.” The notice does not indicate against whom the monetary sanctions are sought. It is therefore unclear from the notice whether the sanctions are sought against plaintiff, his attorney, or both.

Accordingly, defendant’s request for monetary sanctions is DENIED.