Case Number: EC060738    Hearing Date: August 01, 2014    Dept: NCD

TENTATIVE RULING (8-1-14)
#6
EC 060738
OMS GLOBAL v. ONEWEST BANK

Defendant Onewest Bank, N.A.’s Motion for Terminating Sanctions

Motion for terminating sanctions is DENIED. Given the service of timely Further Responses to the subject discovery, and the failure of the moving papers to include those responses in the Separate Statement, or to directly address in the Separate Statement, memorandum or declaration the further responses or show the court how said responses constitute disobedience of this court’s previous orders, the court cannot find that any order of the court has been disobeyed warranting the imposition of a sanction much less a terminating sanction. The court notes that even in making an independent review of the further responses, it is unable to ascertain why moving party claims such responses do not comply with the court’s orders of April 11, 2014, other than the response to Form Interrogatory No. 12.1, which does not respond to each subpart of the subject interrogatory. Such an omission, while not ideal, does not rise to the level of misconduct warranting terminating sanctions.

Request for monetary sanctions is DENIED.

FACTUAL BACKGROUND:
On April 11, 2014, the court heard motions brought by moving defendant to compel further responses to form interrogatories and document demands. The motions were granted, and the court denied a request or monetary sanctions, noting:
“On these particular motions under the circumstances, and in the interests of justice, the Court finds that respondent established substantial justification for its inadequate responses to the Request for Production of Documents and Form Interrogatories (Set One). Nonetheless, the Court notes that both motions were obviously meritorious as reflected in the Court’s rulings thereon. The Court would not expect to countenance from plaintiff OMS Global, LLC any further inadequate discovery responses of the type evident on this occasion.”

DISCOVERY AT ISSUE:
Form Interrogatories: Loss of Earnings, Witnesses, Reports, Details Concerning RFAs not admitted

Request for Production: Requesting documents described in responses to interrogatories, RFAs, communications with various parties, supporting various contentions and claims, damages

ANALYSIS:
Procedural
The motion is very general, arguing that plaintiff has disobeyed this court’s April 11 orders by providing vague responses which have little bearing on the allegations in the operativee pleading, and by providing only 13 documents, which were nearly entirely already in OneWest’s possession.

The opposition argues that the court cannot consider this motion because OneWest’s separate statement in support of the motion fails to address the further responses which were provided in response to the court’s order, and which are in fact attached to the moving papers, and to specify a factual and legal basis why the further responses are inadequate.

CRC Rule 3.1345 requires that “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.”

This motion seeks to establish disobedience of the court’s prior orders by arguing that the responses were inadequate, which involves the content of the discovery requests, and the court would certainly expect such a motion to be accompanied by a separate statement.

OneWest has filed a separate statement, but the statement fails to set forth the text of the further responses, or to explain why those further responses do not comply with the court’s orders.

CRC Rule 3.1345(c) provides that a separate statement is a “separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. This separate statement “must include” for each discovery request to which a further response is requested, “(1) The text of the request, interrogatory, question or inspection demand” in addition to “(2) The text of each response, answer or objection, and any further responses or answers, …” and “(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.” The subdivision further states that “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.”

Here, OneWest’s statement does not include each further response and does not provide a statement of the factual and legal reasons why each is inadequate such that the extreme remedy of ordering terminating sanctions is requested. OneWest has attached the further responses to the moving papers, but this requires the court to review those documents to determine the full response and presumably draw its own conclusions as to why any given response is inadequate. This is not appropriate and the motion is denied for failure to submit an appropriate separate statement.

This failure is critical here, because the separate statement submitted appears in some respects to be almost misleading with respect to the status of this dispute. For example, Form Interrogatory 8.4 requests, “State your monthly income at the time of the INCIDENT and how the amount was calculated.” The response set forth in the separate statement is the original response, with objections concerning the meaning of “incident.” The separate statement then sets forth the court’s order which was to grant the motion to compel a further response and overrule the objections, and:
“Plaintiff OMS Global, LLC is ordered to provide further responses to the subject interrogatories from Form Interrogatories, Set One, which respond to all subparts, and provide all information requested. The court does not find persuasive the argument that the term “Incident” as defined by plaintiff’s own pleadings renders standard form interrogatories not capable of being appropriately responded to. Further responses to be served within 10 days. “

The argument made in the separate statement is
“Despite requests made by OneWest’s counsel (See Declaration of Tiffany M. Birkett, Esq. attached to Motion for Sanctions), Plaintiff failed to comply with the Court’s order and refused any meet and confer efforts made by OneWest’s counsel.”

This suggests that no further responses were served, or that they did not differ materially from the response set forth.

In reviewing the further responses attached to the moving papers, the further response is, “Monthly income was $141,078 based upon monthly revenues received.” [See Birkett Decl., Ex. 4, Further Response to Form Interrogatory No. 8.4, 2:6-7].

This appears to provide the information requested, and it is not clear how this response constitutes disobedience of the court’s order. If OneWest has some legal or factual reason why this response is insufficient, it should have been stated, and OneWest probably should have brought a motion to compel further responses based on such a showing. A review of the further responses to interrogatories shows no obvious deficiencies, other than the failure to answer every subpart of Form Interrogatory No. 12.1, which could be because the identified witnesses are offered to every subpart.

A review of the separate statement in connection with the document demands similarly does not address the actual further responses or documents produced. The motion is denied for failure to submit an appropriate separate statement.

Substantive
Under CCP § 2030.300(e), if a party “fails to obey” a court order compelling further responses to interrogatories, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010” Under section 2023.010, “misuse of the discovery process” includes “(g) Disobeying a court order to provide discovery.” Where there has been such conduct, under CCP section 2023.030 (d), the court may impose a terminating sanction by issuing an order “(1)…striking out the pleadings… of any party engaging in the misuse of the discovery process.” Similar provisions apply where a party has failed to obey a court order compelling further responses to document demands. See CCP Section 2031.310(e).

Where a court order has been disobeyed, the choice of sanction is within the court’s discretion and will only be set aside for abuse of discretion. Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.

In general, courts should grant lesser sanctions first before granting terminating sanctions. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771. The court in Deyo set out factors which may be relevant in deciding whether to impose sanctions and which sanction to impose:
• The time which has elapse since the interrogatories were served.
• Whether the party received extensions of time to answer
• The number of interrogatories propounded
• Whether the unanswered questions are material to a particular claim or defense
• Whether the answering party acted in good faith and with reasonable diligence
• Whether the answers supplied were evasive or incomplete
• The number of questions remaining unanswered
• Whether the unanswered questions sought information that was difficult to obtain
• The existence of prior court orders compelling discovery and the answering party’s compliance therewith
• Whether the party was unable to comply with previous orders re discovery
• Whether an order allowing more time to answer would enable the answering party to supply the necessary information
• Whether some sanction short of dismissal would be appropriate to the dereliction.

The court in Deyo noted: “The penalty 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.” Deyo, supra, at 793.

As noted above, in part due to the failure to set forth in the memorandum or separate statement the specific further responses and why they fail to comply with what the court ordered, OneWest has failed to meet its burden on this motion.

With respect to the document demands, the court’s previous order was, “Further responses, without objection, to be served, and copying permitted, within ten days.”

The further responses do not appear to assert objections and state responses like, ‘Responding Party produces herewith such documents within its possession, custody or control,” or that there are no documents in its custody, possession or control “because no such documents exist,” or that there are no documents other than those identified, which are produced. [See Birkett Decl., Ex. 5]. It is entirely unclear how these responses violate the court’s previous order, such as why responding party must have responsive documents, or what exact documents were produced and why OneWest thinks such production is incomplete. Accordingly, it is not established that a court order has been violated, nor that this motion is calculated to actually obtain discovery, rather than exact disproportionate punishment from the responding party.

Monetary Sanctions
OneWest requests monetary sanctions. CCP § 2030.290(c) provides that for failure to obey a court order compelling responses to interrogatories, “In lieu of or in addition to” an issue, evidence or terminating sanction, “the court may impose a monetary sanctions under Chapter 7 (commencing with Section 2023.010.” A similar provision applies to the failure to obey a court order compelling responses to document demands. CCP section 2031.300(c).

As noted above, the moving papers have failed to establish failure to obey a court order, so no monetary sanctions shall be awarded.