Shaheen v. Alizadeh CASE NO. 113CV249725
DATE: 19 June May 2014 TIME: 9:00 LINE NUMBER: 16
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 18 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the motion of Raymond Shaheen (“Plaintiff”) for terminating sanctions or issue sanctions, and for monetary sanctions against Defendant Azita Alizadeh and her counsel of record Paul Warner (collectively “Responding Parties”) was argued and submitted.

Defendants did not file/filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

Statement of Facts

On 15 July 2011, Defendant issued a promissory note in Defendant’s favor for the amount of $524,291.71. The note stated that the principal balance and accrued interest (at a 15% rate on a yearly basis) would be due on 15 June 2012. Defendant allegedly defaulted on the note.

Discovery Dispute

On 19 July 2013, Plaintiff filed the complaint initiating this action.

On 09 August 2013, the Defendant was personally served with the complaint.

On 09 September 2013, Defendant’s counsel requested the deadline to file an answer to the complaint be extended to 07 October 2013.

On 08 October 2013, Defendant’s counsel requested the deadline to file an answer be extended to 16 October 2013. Plaintiff’s counsel granted the extension.

On 29 October 2013, Plaintiff served Defendant with Set One of Plaintiff’s Form and Special Interrogatories and Demand for Inspection and Production.

On 01 November 2013, 12 November 2013 and 18 November 2013, Plaintiff’s counsel emailed and left voice messages for Defendant’s counsel requesting to select a mediator.

On 27 November 2013, Defendant’s counsel contacted Plaintiff’s counsel to confirm a mediator. Mediation was scheduled for 20 January 2014, but Defendant’s counsel canceled the mediation on 16 January 2014 and failed to pay the mediator’s retainer fee, which had been due on 15 January 2014, until 24 January 2014.

On 27 November 2013, Plaintiff’s counsel granted Defendant’s counsel’s request to extend the deadline to respond to Plaintiff’s discovery requests from 03 December 2013 to 16 December 2013.

On 02 December 2013, Defendant’s counsel requested the deadline to respond to Plaintiff’s discovery requests be extended to a date following mediation, but Plaintiff’s counsel denied the request.

On 13 December 2013, Defendant served her responses to Plaintiff’s pending discovery.

On 16 January 2014, Plaintiff’s counsel requested an extension to serve responses to Defendant’s discovery requests, which were due on 21 January 2014. Defendant’s counsel did not reply, and Plaintiff filed timely responses.

On 22 January 2014, Defendant’s counsel responded to Plaintiff’s request for an extension, stating “you denied me an extension when I asked for it in relation to the mediation. Sauce for the gander?” The same day, Plaintiff sent a meet and confer letter requesting further responses to Plaintiff’s form interrogatories by 28 January 2014.

On 16, 21, 22, 28, and 31 January 2014, Plaintiff’s counsel attempted to set dates for mediation but Defendant’s counsel did not provide specific dates.

On 27 January 2014, Plaintiff requested further responses by 04 February 2014 and the deadline to file a motion to compel further responses to interrogatories was extended to 01 March 2014.

On 06 February 2014 and 11 February 2014, Plaintiff’s counsel emails requesting Defendant’s supplemental responses.

On 12 February 2014, Plaintiff’s deadline to file a motion to compel further responses was extended to 28 March 2014.

On 28 February 2014, Plaintiff’s counsel sent an email requesting Defendant’s supplemental responses to Set One of Plaintiff’s Form and Special Interrogatories and Set One of Plaintiff’s Demand for Inspection and Production by 07 March 2014.

On 14 March 2014, Plaintiff’s counsel sent an email informing Defendant’s counsel that a motion to compel would be filed.

On 25 March 2014, Plaintiff filed the motions at hand.

On 15 April 2014, Defendant filed “responses” to Plaintiff’s motions without opposition. Defendant’s counsel attributes the failure to provide further responses to “the press of business” and requests this be taken into consideration.

On 15 April 2014, the Court granted Plaintiff the motions to compel further responses to interrogatories and further documents per the inspection demand.

On 9 May, 2014, Plaintiff’s counsel notified Defendant’s counsel that further responses were past due and affirmatively extended the compliance deadline until 12 May, 2014.

On 12 May, 2014, Plaintiff’s counsel granted the one-day extension request from Defendant’s counsel.

On 13 May, 2014, Judge Manoukian’s clerk notified Plaintiff’s counsel that the Order was filed on 22 April, 2014, so the compliance deadline was 14 May, 2014.

On 14 May, 2014, Plaintiff’s counsel file this motion after no further response was received.

Analysis

Plaintiff makes a request for terminating and monetary sanctions.

Code of Civil Procedure, § 2023.040 states: “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. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (See Rule of Court 2.30).

The Court may impose monetary, evidentiary, contempt or terminating sanctions where a party is engaging in conduct that is a misuse of the discovery process. “If a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction…lieu of, or in addition to, that sanction, the court may impose a monetary sanction.” (Code Civ. Proc. § 2031.310(i)). “Absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc. § 2031.060(i)). The exact circumstances in which sanctions may be granted varies based on the type of sanctions.

In support of the request for sanctions, Plaintiff cites Code of Civil Procedure, §§ 2023.010 and 2023.030. Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

Here, Plaintiff makes a request for specific sanctions which identified Responding Parties for the motion. Responding Parties disobeyed a court order to provide discovery and failed to respond to interrogatories. The information requested by Plaintiff is material to the initial breach of contract action and cannot be obtained from another source. Responding Parties’ withholding of the information could greatly impair the ability of Plaintiff to prepare for the upcoming trial.

I. Request for Terminating Sanction
II.
Plaintiff is requesting terminating sanction for the actions of the Responding Parties.

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 of appeal has indicated that the trial 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).

Additionally, 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). Put another way, 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 an incremental bases depending upon the severity of the violation. (See Doppes 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. (internal quotation marks and citations omitted).

In the discovery context, willfulness may be found where the responding party “understood his [or her] obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 787). “A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at 787-788 (citing Snyder v. Sup. Ct., 9 Cal. App. 3d 579, 587 (1970)).

However, 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 (Granting terminating sanctions where a lawyer failed to respond to numerous special interrogatories and demands for production of documents, failed to respond to motion to compel discovery, failed to obey a court order to provide discovery, and failed to respond to demands for production even after filing motion for relief from default.); Doppes 174 Cal. App. 4th at 992 (Holding that trial court abused its discretion in failing to grant terminating sanctions against defendant who engaged in persistent and serious misuse of the discovery process); Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279 (Holding that terminating sanctions were not an abuse of discretion where appellant repeatedly failed to answer discovery requests despite numerous extensions sought and granted, the issuance of court orders and monetary sanctions); 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)). Where these conditions are met, the Court is justified in ordering terminating sanctions (See Id.).

Here, Responding Parties failed to comply with the April 15, 2014 order from this Court to compel further responses to interrogatories and further documents per the inspection demand. Plaintiff relied on Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611 where the court granted terminating sanction for the failure of defendants to obey an order to respond and answer interrogatories.

Responding Parties are aware of the court order and previously asked for compliance extension. Plaintiff granted the extension, but Responding Parties still failed to respond in the timely matter. Plaintiff attorney is unable to prepare for the upcoming trial properly without the information from Responding Parties. In the Separate Statement filed by Plaintiff attorney, the tendered responses by the Responding Parties were insufficient and incomplete. Responding Parties’ conduct is akin to stalling tactic would could continue indefinitely.

Plaintiff request this Court to enter a default judgment in favor of Plaintiff or strike the Defendant’s Answer in its entirety. The request of Plaintiff for terminating sanctions is GRANTED. Defendant’s answer is STRICKEN.

III. Request for Issue Sanction
IV.
Plaintiff request for issue sanction if terminating sanction is not granted. Since terminating sanction is granted, the request for issue sanction is MOOT.

V. Request for Monetary Sanction
VI.
Plaintiff is requesting monetary sanction, in addition to terminating sanction, for misuse of the discovery process.

Concerning the monetary sanction demand, Responding Parties has not unsuccessfully opposed the Plaintiff’s motions. (Code Civ. Proc. § 2030.290; 2031.300). Therefore, reliance on §§ 2030.010, 2030.300, 2031.310 for monetary sanctions is inapplicable in this case because the Responding Parties have not unsuccessfully opposed the Plaintiff’s motion. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Here, the Plaintiff filed a timely written notice of the motion which is code compliant. The notice named Responding Parties, specified the sanctions, and identified the reasons for sanctions. In the Points and Authority supporting the motion, Plaintiff referenced Rules of Court 3.1348(a) for an award of sanction by the Court even if no opposition to the motion is filed. The calculation for the monetary sanction is also clearly stated in the Points and Authority.

The Plaintiff requests this Court for the monetary sanction in the amount of $5290.00. This is computed at the rate of $240 per hour and 15 hours of time. Additionally, in the memorandum of points and authorities, Plaintiff asks this Court to impose a contempt citation of $1500 for a violation of Code of Civil Procedure, § 177.5.

The request for monetary sanction is GRANTED as follows: This Court believes that a reasonable amount of time prepare the moving papers for this unopposed motion is four hours. Therefore, the Court will award $960.00 in attorneys fees with additional costs of $60.00 in filing fees for a total of $1020.00. Said sum is to be paid within 20 days of the date of the filing of this Order.

The Court will decline to impose sanctions for contempt by a violation of a lawful court order.

Order

The request of Plaintiff for terminating sanctions is GRANTED. Defendant’s answer is STRICKEN.

The request for monetary sanction is GRANTED as follows: The Court will award $960.00 in attorneys fees with additional costs of $60.00 in filing fees for a total of $1020.00. Said sum is to be paid within 20 days of the date of the filing of this Order.