Case Number: BC645822 Hearing Date: June 27, 2018 Dept: 61
Defendants Karamat Navizadeh, K&F Navi, LLC, K&F Navi, Inc., BP West Coast Products LLC, and Tesoro Refining and Marketing Company, LLC’s Motion for Terminating Sanctions are GRANTED.
Defendant Treasure Franchise Company, LLC’s Motions to Compel are GRANTED. Objection free responses to be provided within 20 days.
The court orders sanctions in the amount of $1,920, as well as costs in the amount of $360 for a total of $2,280 as against Plaintiffs and counsel.
Moving party to give notice.
MOTION FOR TERMINATING SANCTIONS
The court may impose terminating sanctions, include an order striking pleadings, and order dismissing an action, or an order rendering judgment by default against a party, for conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030.) This conduct includes “[f]ailing to respond or to submit to an authorized method of discovery,” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)
Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)
Franchise Defendants argue that Carrillo and Vargas have failed to comply with two court orders regarding discovery responses: this court’s November 22, 2017 order to compel responses to Franchise Defendants’ discovery, to which Plaintiffs responded with haphazard responses, which were in turn the subject of this court’s March 21, 2018 order granting in part Franchise Defendants’ Motion to Compel Further Responses. (Motion at pp. 4–5.)
The court agrees with Franchise Defendants that Plaintiffs Carrillo and Vargas, by serving facially deficient responses to the Franchise Defendants’ first discovery requests in response to this court’s November 22, 2017, order, and by failing to serve any responses after this court ordered further responses produced on March 21, 2018, that Plaintiffs have demonstrated a pattern of misconduct warranting terminating sanctions. This pattern is corroborated by their failure to pay the amounts owed in sanctions pursuant to those motions. The court concludes that Plaintiffs have engaged in a pattern of willfully failing to comply with this court’s orders, and that terminating sanctions as to the Franchise Defendants are appropriate.
The Franchise Defendants’ Motion for Terminating Sanctions against Plaintiffs Vargas and Carrillo are therefore GRANTED.
MOTION TO COMPEL
A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)
A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.) A court may relieve a party from this waiver “on its determination that both of the following conditions are satisfied:
(1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240.
(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.
(Code Civ. Proc. § 2030.290, subd. (a).)
Treasure has here served six discovery requests upon Plaintiffs: Form and Special Interrogatories, as well as Requests for Production, directed to both Carrillo and Vargas. (Webb Decl. ¶ 2.) Responses to these requests were due by March 2, 2018. (Webb ¶ 3.) Yet no responses have been served. (Webb Decl. ¶¶ 4–5.)
The motions are GRANTED. The court finds that Plaintiffs have therefore waived their objections to this discovery. Plaintiffs to provide objection-free responses within 20 days.
SANCTIONS
The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, 2031.300.)
Treasure requests $940 in sanctions for each of its six motions to compel, representing for each motion 5.5 hours of attorney work at $160 per hour plus a $60 filing fee, for a total of $5,640.00. (Webb Decl. ¶ 6.) Given the simplicity and similarity of the motions, the court finds this amount excessive. The court orders sanctions in the amount of $1,920, as well as costs I the amount of $360 for a total of $2,280.