On 14 March 2014, the motions of Defendant for monetary sanctions against Plaintiff in the amount of $8,660.00 and two in force prior court orders compelling the payment of monetary sanctions by Plaintiff to Defendant pursuant to this court’s orders of 9 October 2013 were argued and submitted. Plaintiff filed no formal opposition to the motion.

Background

Plaintiff Sharon Visini (“Plaintiff”) brings this action alleging, among other claims, wrongful retaliatory termination, unfair business practices, and age discrimination against Defendant Kiran Rapal (“Defendant”).

Requests for Admissions: On 2 October 2013, Defendants served upon Plaintiff a set of requests for admissions. No responses were served. Plaintiff failed to respond to the Request for Admissions by the November 6, 2013 deadline.

On November 6, 2013, counsel for Defendant called counsel for Plaintiff and spoke about the Plaintiff’s outstanding discovery responses. They discussed a possible arrangement in which Defendant would withdraw the second motion to compel if Plaintiff provided all outstanding discovery responses, without objection, prior to November 14, 2013.

On November 7, 2013, Counsel for Plaintiff stated that the Plaintiff “should be able to comply” with the request. However November 14 passed and Defendant received no response.

On December 17, 2013, Defendant filed a motion for terminating sanctions and filed a motion to Deem Admitted, both to be heard on January 17, 2014.

On January 10, 2014 Plaintiff provided discovery responses. For this reason, at the January 17, 2014 hearing Defendant only sought monetary sanctions. The court denied this request on the grounds that they were not code-compliant pursuant to Code of Civil Procedure section §2023.040.

Special Interrogatories and Request for Production: On 5 July 2013 counsel for Defendant propounded Special Interrogatories, Set One, and Request for Production of Documents, Set One to Plaintiff and her counsel. Responses were originally due on August 9, 2013. Defendant later granted Plaintiff an extension to August 26, 2013.

On 26 August 2013, Plaintiff requested another extension to September 2, 2013, but could not reach counsel for Defendant directly. Nonetheless, on 3 September 2013, counsel for Defendant sent a letter through mail and email requesting the discovery responses and waiver of any potential objections since Plaintiff had not responded before the agreed upon extension.

In an order dated 9 October 2013, this court ordered Plaintiff to provide responses within 20 days of the filing of the order as well as the payment of monetary sanctions in them out of $1810.00, also within 20 days of the date of the filing of the order.

The moving papers state that no responses to Special Interrogatories, Set One, and Requests for Production of Documents, Set One, have been served.

In opposition papers, Plaintiff states that “plaintiff has no substantial excuse for the prior failure to comply with the discovery demands. . . “ She states that the amount of discovery was overwhelming to understand and to intelligently respond. She also states that she felt sandbagged and felt the case was going to mediation, and that the discovery responses were not necessary.

The opposition papers suggest that the motion is moot although there is no sworn declaration to the fact of the service of any responses.

Defendant did not receive any written discovery responses or documents from Plaintiff by the October 29, 2013 deadline.

On February 20, 2014, Defendant filed a motion to compel compliance with Court order and for monetary sanctions in the amount of $8,660. The opposition was due by March 3, 2014.

On March 7, 2014 Defendant filed a document entitled “Reply to Plaintiff’s Non-Opposition to Defendant’s Motion to Compel Compliance with Court Order and for Monetary Sanctions.”

Discussion:

This Court is curious as to why Defendant is not seeking terminating sanctions for failure to comply with a prior lawful court order.

A. Failure to Pay Earlier Imposed Monetary Sanctions

The authorities and the learned texts on the subject agree that a party may collect unpaid money sanctions by the usual collection procedures. This Court will decline to impose sanctions for failure to pay monetary sanctions.

B. Contempt of Court

Defendant also asks this court to impose a sanction of $1500 payable to the court pursuant to Code of Civil Procedure, § 177.5.

Code of Civil Procedure, § 177.5 states: “A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($ 1,500), notwithstanding any other provision of law, payable to thecourt, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both. [¶] Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”

In 20th Century Ins. Co. v. Choong (2000) 79 Cal.App.4th 1274, a civil action, the trial court’s imposition of a monetary sanction on plaintiff’s attorney for his failure to pay a previous monetary sanction was not an abuse of discretion. Although the county could have collected the first sanction through a writ of execution, the purpose of the second sanction was not to collect the first, but to penalize the attorney for ignoring lawful orders of the court. (supra at p. 278.)

In a civil contempt proceeding, contempt must be proved beyond a reasonable doubt. In re Martin (1977) 71 Cal. App. 43d 472, 480. It is an essential element of contempt that the conduct of an accused must be willful in the sense that it is inexcusable. Little v. Superior Court of Los Angeles County (1968) 260 Cal. App. 2d 311, 317. There must be substantial evidence that the contemnor willfully and contemptuously refused to obey the order of the court. Id.

Which of various sanctions should be ordered for disobedience of a court order lies within the court’s sound discretion, subject to appellate review only for abuse of discretion. Sauer v. Sup. Ct. (1987) 195 Cal.App.3d 213, 228. The court is not required to grant any particular sanction or any sanctions at all. The court’s decision with regard to imposing sanctions must be consistent with public policy regarding discovery sanctions, which is to compel disclosure. Indeed, the primary purpose behind sanctions is to enable parties to obtain the information sought, rather than to punish a disobedient party or lawyer. A secondary purpose is to compensate the interrogating party for costs and fees incurred in enforcing discovery. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 769. To impose sanctions solely for punishment purposes is an abuse of discretion. Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.

In such cases, the charge, the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused. Hotaling v. Superior Court of San Francisco (1923) 191 Cal. 501, 506.

This Court is reluctant to engage in a time-consuming piece of satellite litigation about whether Plaintiff knew about the lawful court order and had the ability to comply with the prior lawful court order, and whether the failure to comply was willful.

Order:

The requests for monetary sanctions contained in both motions are DENIED.

Neither notice of motion contains a statement as to the amount of monetary sanctions sought. Therefore, the requests are not code-compliant. Code of Civil Procedure, § 2023.040 states: “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.” Thus, the memo supports and further elucidates the notice of motion. Similarly, the declaration supports the amount of monetary sanction sought. A document can only “support” a claim if there is a claim to begin with. Since both the memo and P & As and declaration both support the notice of motion, it seems that the language of Code of Civil Procedure, § 2023.040 necessitates the amount of the monetary sanctions in the motion.