2017-00211607-CU-FR

Della Owens vs. Darnell Owens

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Brown, Melissa C.

Plaintiff’s Motion for Terminating Sanctions is denied.

Although the Notice of Motion limits the requested relief to terminating sanctions, the points and authorities request monetary sanctions as well. The Court denies monetary sanctions for failure to comply with CCP 2023.040, which requires that a notice shall identify each type of sanction sought.

April 26, 2017, the Plaintiff filed a Complaint for Financial Elder Abuse, Undue Influence, Unjust Enrichment, Fraud, Deceit, False Promise, Intentional Misrepresentation, Conversion, Negligent Misrepresentation, and Intentional Infliction of Emotional Distress. (Brown Decl., 2). Plaintiff alleges that her son, defendant Darnell Owens, wrongfully took $80,000 that was in a joint account with his name on it and deposited the funds elsewhere even though the funds were to be for plaintiff’s benefit.

After plaintiff served discovery on the defendant, a Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Requests for Production was filed and granted on May 29, 2018. Defendant was ordered by the Court to serve verified responses to discovery by mail before June 11, 2018. (Minute order May 29, 2018, Dept 53) No responses were received. Two earlier motions for terminating sanctions were dropped from calendar by the court for insufficient notice pursuant to CCP 1005 (b).

On October 17, 2018, a mandatory settlement conference was held at which the Defendant introduced new associated counsel, Mr. Latini. An agreement was reached between the parties that the Defendant would provide all further financial documents to account for the spending of the $80,000, that the Defendant agreed to pay for a third party audit, and that the previously filed motion for terminating sanctions would be dropped, with the option to renew the motion. (Brown Decl., ¶ 28). However, as noted above, the Court, not the plaintiff dropped the motions for terminating sanctions.

In opposition, plaintiff’s son states he moved the money from the joint account because he believed his brother was using the funds for his own personal use. Counsel for defendant states that he did not provide Plaintiff s discovery following the Court order due to his own failure to manage his time and to attend to this matter with attention and seriousness. He states he believed the matter would be resolved at mediation. At the mediation he produced for plaintiff’s counsel documents and records comprising receipts etc. for the expenses and withdrawals for the account in which he placed the $80,000 that were made for the benefit of Plaintiff and which he contends are responsive to the discovery requests and subsequent order. Counsel states additional documents were provided on a later date, and he is now waiting to receive bank statements expected to arrive the week of February 18.

As is apparent from the opposition, it appears that plaintiff has been provided some of the requested documents, and that counsel for plaintiff is intending to provide additional documents. Therefore, the Court does not at this time find that a terminating sanction is the appropriate remedy when it appears only one court order has been disobeyed. A terminating sanction for violation of one court order would be overly punitive given that plaintiff has received some documents.

A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is tailored to the harm caused by the withheld 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. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.) Indeed, “‘The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. [Citations.]'” ( Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782.)

The discovery statutes thus “evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure (see Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928-929; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10), a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective (see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516; Doppes, supra, 174 Cal.App.4th at p. 992; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399; Lopez, supra.)

A terminating sanction is denied as it does not reflect the incremental approach to discovery sanctions. As monetary sanctions were not sought in the notice of motion [nor is it asserted against whom they are sought], they are denied at this time. In determining a motion, a court may consider only grounds stated in the notice of motion. Hernandez v. National Dairy Products Co. (1954) 126 Cal App 2d 490. Even if sanctions were permitted, they would be denied, as the circumstances reflect imposition of monetary sanctions would be unjust. (See, e.g. Logan Decl. ¶ 4-5.)

The Court is not ordering discovery responses at this time because the discovery motion cutoff was on or before 15 days before the March 11, 2019 trial date. Therefore, any discovery motion must have been set for hearing on or before Friday February 22, 2019. CCP 2024.020.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.