Case Number: KC068922 Hearing Date: February 22, 2018 Dept: J

Re: Anthony Aguilar v. Rue Royale, LLC, et al. (KC068922)

MOTION FOR TERMINATING SANCTIONS

Moving Parties: Defendants Rue Royale LLC and Rose Jones

Respondent: No timely opposition filed (due 2/7/18)

POS: Moving OK

In this landlord/tenant dispute, the complaint, filed 12/13/16, asserts causes of action against Rue Royale LLC, Rose Jones (“Jones”) and Does 1-10 for:

Breach of Contract

Breach of Covenant of Good Faith and Fair Dealing

Breach of Covenant of Quiet Enjoyment

Fraud

Nuisance

Negligent Infliction of Emotional Distress

Punitive Damages

Negligence

On 4/4/17, the court sustained Rue Royale, LLC’s and Jones’ demurrer to the fourth and seventh causes of action without leave to amend. The Final Status Conference is set for 10/15/18. A jury trial is set for 10/23/18.

Defendants Rue Royale LLC and Rose Jones (“defendants”) move the court, per CCP §§ 2030.290(c) and 2031.300(c), for an order imposing terminating sanctions against Plaintiff Anthony Aguilar (“plaintiff”) for failing to comply with the court’s 10/2/17 and 10/3/17 orders.

“Misuses of the discovery process include, but are not limited to, the following:…(g) Disobeying a court order to provide discovery.” CCP § 2023.010(g). “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:… (d) The 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…(4) An order rendering a judgment by default against that party.” CCP § 2023.030.

“If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010)…” CCP § 2030.290(a). “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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. If a party then fails to obey an order compelling answers, 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). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” CCP § 2030.290(c) (emphasis added).

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010)…” CCP § 2031.300(a). “[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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. If a party then fails to obey the order compelling a response, 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). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” CCP § 2031.300(c) (emphasis added).

“The trial court may order a terminating 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).” Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390. “Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court’s authority cannot be vindicated through the imposition of a less severe alternative. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917; People v. Lockwood (1998) 66 Cal.App.4th 222, 230). For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that ‘”’are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment’”’ (Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64, quoting Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782, italics added.).” Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331-332.

On 10/2/17, the court granted defendants’ motions to compel answers to special interrogatories and form interrogatories, sets no. one, and ordered plaintiff to provide verified responses, without objections, within 10 days of the hearing date. The court also ordered plaintiff to pay sanctions of $820.00. On 10/3/17, the court granted defendants’ motion to compel responses and production to demand for inspection and production of documents, set no. one, and ordered plaintiff to provide verified responses and to produce responsive documents within 10 days of the hearing date. The court also ordered plaintiff to pay sanctions of $260.00. Defendants’ counsel represents that, as of the 11/3/17 filing date of the motion, plaintiff has not complied with the court’s 10/2/17 and 10/3/17 orders. (Atanous Decl., ¶ 8).

The court, however, notes that on 2/2/18, defendants’ “Ex Parte Application for a Court Order to Continue the Trial Date, Discovery and Motion Cut-Off Dates, Date to Exchange § 2034 Expert Witness Information, Final Status Conference Date, and All Other Pre-Trial Dates” (“Application”) was heard. The Application recited, inter alia, that defendants’ motion to compel responses to form interrogatories and special interrogatories was granted on 10/2/17, that defendants’ motion to compel responses to demand for production of documents was granted on 10/3/17, and that defendants filed a motion for terminating sanctions on 11/3/17 after plaintiff failed to comply with the court’s 10/2/17 and 10/3/17 orders. The Application, however, also stated that plaintiff, in fact, provided tardy responses to the aforesaid discovery requests on 12/2/17 and that motions to compel further responses pertaining to same are currently set for hearing on 4/16/18, 4/17/18 and 4/1818. The Application was silent with respect to the issue of payment of sanctions. As plaintiff did in fact serve responses to the discovery that are the subject of pending motions to compel further responses, the motion for terminating sanctions is denied.