Case Number: BC690039 Hearing Date: October 23, 2019 Dept: 4A

Motion for Terminating, or Lesser, Sanctions

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

BACKGROUND

On January 11, 2018, Plaintiff Vladislava Kapitsa (“Plaintiff”) filed a complaint against Defendants Sophia Rozov, D.D.S. and Sophia Rozov, D.D.S., Inc. (“Defendants”) alleging dental malpractice for over-preparing Plaintiff’s teeth and not establishing Plaintiff’s bite.

On January 30, 2019, the Court ordered Plaintiff and her counsel to pay Defendants $1,740.

On September 4, 2019, Defendants filed a motion for terminating, or lesser, sanctions against Plaintiff pursuant to California Code of Civil Procedure section 2023.030.

Trial is set for November 14, 2019.

PARTIES’ REQUESTS

Defendants ask the Court to impose terminating, issue, evidence, and monetary sanctions against Plaintiff for a failure to comply with a January 30, 2019 Court order requiring Plaintiff and Plaintiff’s counsel to pay Defendants monetary sanctions.

LEGAL STANDARD

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. . . .”

A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.) Rather, a monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, California Code of Civil Procedure sections 680.010, et seq. (Id. at p. 615.)

DISCUSSION

On January 30, 2019, the Court ordered Plaintiff and her counsel to pay Defendants $1,740 for abusing the discovery process. (Kamel Decl., ¶ 10, Exh. A.) Defendants had not received payment on the outstanding sanctions order as of the signing of Brian p. Kamel, Esq.’s declaration on September 4, 2019. (Kamel Decl., ¶ 16.)

The Court finds terminating sanctions are not appropriate. While it is true that Plaintiff and her counsel have disobeyed a Court order, the Court cannot issue terminating sanctions for failing to pay monetary sanctions. (Newland, supra, 40 Cal.App.4th at pp. 610, 615.) Similarly, evidence sanctions and issue sanctions are not necessitated by this relatively minor disobedience. Importantly, this failure to obey the Court’s January 30, 2019 order does not appear to have any impact on Defendants’ preparation for trial.

The Court finds an additional monetary sanction is appropriate. Plaintiff’s failure to abide by a Court order is serious. Plaintiff’s failure to abide by the January 30, 2019 Court order has deprived Defendants of money to which they are entitled. Defendant’s request of $1,635 in further sanctions against Plaintiff and her counsel consists of 4 hours in preparing this motion, 2 hours in reviewing the opposition and preparing the reply, 2.5 hours in traveling to and attending the hearing at a rate of $150 an hour, plus one $60 filing fee. (Kamel Decl., ¶, 17.) The Court finds this to be an unreasonable because the motion, opposition, and reply were relatively simple. Rather, the Court finds $660 ($150/hr. x 4 hrs. plus one $60 filing fee) to be a reasonable amount of additional sanctions to be imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, for their failure to pay the previous sanctions awarded.

The motion is GRANTED in part and DENIED in part.

Plaintiff and Plaintiff’s counsel of record are ordered to pay Defendants additional sanctions of $660 within 30 days of this ruling.

Plaintiff and Plaintiff’s counsel of record are also ordered to abide by the Court’s January 30, 2019 order compelling payment of $1,740 in monetary sanctions within 30 days of this ruling.

Defendants are ordered to give notice of this ruling.