Case Number: BC679898 Hearing Date: June 27, 2018 Dept: 40

MOVING PARTY: Plaintiffs Loraine Strong and Sandra Garcia

OPPOSITION: None Submitted

Background: Plaintiffs Loraine Strong and Sandra Garcia, as trustees of the Joyce E. Buchanan Trust sue defendants James Wier Family, LLC and Christine Mueller, as a managing member of the James Wier Family, LLC, for dissolution, an accounting, damages, and other relief arising from allegations that defendants have failed and refused plaintiffs’ demands for dissolution and an accounting, and have made decisions without notifying plaintiffs. Plaintiffs allege that the Buchanan Trust owns a 50% interest in James Wier Family, LLC.

On March 17, 2017, plaintiff filed a complaint in Ventura County for (1) breach of contract, (2) dissolution, (3) accounting, (4) breach of fiduciary duty, and (5) bad faith. The complaint was filed in this Court on November 13, 2017.

On April 17, 2018, the Court granted plaintiffs’ six unopposed motions to compel initial responses to discovery. The minute order from that day states that defendants were ordered to serve responses within 20 days “or risk inviting a motion for terminating sanctions.”

On May 17, 2018, plaintiffs filed this unopposed motion for terminating sanctions, arguing that defendants have failed to comply with the Court’s order. Plaintiffs also seek monetary sanctions of $1,810.00.

Standard: Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.

Code of Civil Procedure section 2023.030, subdivision (d) provides that “[t]he court may impose a terminating sanction by one of the following orders: [¶] (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. [¶] (2) An order staying further proceedings by that party until an order for discovery is obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party. [¶] (4) An order rendering a judgment by default against that party.” A terminating sanction is “the ultimate sanction for discovery abuse.” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.

Short of terminating sanctions, Code of Civil Procedure section 2023.030, subdivision (c) allows the court to “impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Discovery 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. [Citation.] 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.” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (internal quotation marks omitted.)

Analysis: Despite the Court’s April 17, 2018, order, plaintiffs represent that defendants still have failed to provide initial responses to plaintiffs’ discovery requests. The discovery requests were initially propounded on August 2, 2017, almost a year ago. Clifton Decl. ¶ 10(a).

Defendants have disobeyed a court order to provide discovery. See CCP § 2023.010(g). Additionally, defendants’ refusal to provide responses since August 2017, oppose the initial motions to compel in April 2018, and oppose the instant motion is tantamount to default. Accordingly, the Court finds that plaintiffs’ motion to strike defendants’ answers and enter default against defendants is warranted.

Sanctions: Plaintiffs request $1,750.00 in fees plus the $60 filing fee against defendants and their counsel.

A court shall impose a sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising such conduct, or both, to pay the reasonable expenses (including attorneys’ fees) incurred by anyone as a result of such conduct, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP § 2023.030(a).

The notice of motion must identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. CCP § 2023.040. 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. Ibid.; Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207-208.

Here, plaintiffs’ motion is successful, and defendants state no reason why they acted with substantial justification or that other mitigating circumstances exist. Therefore, plaintiffs are entitled to a reasonable sanction.

Plaintiffs’ counsel claims an hourly rate of $350.00, that he spent four hours preparing the motion, that he anticipates spending one hour preparing for the hearing, and that he paid a $60 filing fee. Clifton Decl. ¶ 11. $350 times 5 is $1,750. This figure plus the $60 filing fee is reasonable.

Conclusion: The motion is GRANTED. Defendants’ Answer is ORDERED STRICKEN. Default is ORDERED entered against defendants as of the date of this ruling.

A monetary sanction of $1,810 against defendants and their counsel of record, jointly and severally, shall be payable to plaintiffs via their counsel transmitted by check in a manner to ensure receipt within 20 days.

Plaintiffs to give notice.