Case Number: VC064833 Hearing Date: January 10, 2019 Dept: SEC
ALVIZURES v. LUNA
CASE NO.: VC064833
HEARING: 01/10-19
JUDGE: LORI ANN FOURNIER
#3
TENTATIVE ORDER (REVISED)
Plaintiff ALVIZURES’s unopposed motion for terminating sanctions, issue sanctions, evidentiary sanctions, and monetary sanctions is GRANTED in part, and DENIED without prejudice in part. CCP §2023.030
Moving Party to give Notice.
Defendant JOHN LUNA and his counsel of record are ORDERED to pay Plaintiff JOSE ALVIZURES and his attorney of record, sanctions in the total amount of $3,620.00 (10 hrs. x $350.00. hr.) + ($120.00 filing fees) no later than 15 calendar days from the date of this hearing.
No Opposition filed as of January 9, 2019.
CCP §2023.010 includes: “(d) Failing to respond or to submit to an authorized method of discovery” and “(g) Disobeying a court order to provide discovery.” CCP §2023.030 provides, in part: “To the extent authorized by this chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, may impose the [sanctions] against anyone engaging in conduct that is a misuse of the discovery process, including monetary and issue and terminating sanctions.” Failing to respond to an authorized method of discovery and disobeying a court order to provide discovery are both misuses of the discovery process.” (CCP §§2023.010 (d) and (g).) Sanctions which may be imposed for a misuse of the discovery process include “terminating sanctions.”
Plaintiff seeks to obtain the following Order: (1) Strike Defendant’s first cause of action for Negligence in the Cross-Complaint; or (2) Impose an issue sanction preventing Defendant from supporting a cross-claim for damage to the Subject Rental Property; or (3) Impose an evidentiary sanction prohibiting Defendant from introducing evidence in support of any claim for damage to the rental property or repairs made to the Subject Rental Property that forms a basis for Defendant’s cross-claim for money damages of $35,000; and (4) Impose sanctions against Defendant for attorney fees incurred by Plaintiff as a result of discovery abuse.
It is a commonly stated axiom that 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.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) However, a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with discovery obligations. The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit. (Id. at 794-795.)
On August 6, 2018, a Stipulation and Order was entered by this Court, ordering that Defendant adequately supplement his January 22, 2016 discovery responses. The Stipulation and Order states, in pertinent part: “the parties have agreed to enter this stipulation which will act as an Order with the same effect as an order after hearing of a motion to compel. Failure to comply with this Order will subject Defendant/Cross-Complainant to further sanctions, including, but not limited to issues [sic] sanctions and perhaps terminating sanctions. The parties therefore Stipulate that Defendant John Luna is ORDERED to provide full and complete responses without objection to the following items by no later than August 31, 2018: (a) Plaintiff’s Demand for Statement of Damages; (b) Demand to Supplement prior responses to Interrogatories; and (c) Demand to Supplement prior responses to Demand for Production of Documents.” (Saucedo Decl., Ex. B.) On September 25, 2018, Cross-Defendant’s Motion for Security Undertaking Pursuant to CCP §1030(a) was granted—to date, Defendant has not posted an undertaking of $65,000.00.
Where no Opposition has been filed as of January 9, 2019, the following facts are undisputed: (1) Defendant failed to provide responses by the due date of August 31, 2018; (2) On September 5, 2018, counsel for Defendant’s counsel emailed Plaintiff’s counsel: Defendant’s Statement of Damages, Defendant’s Supplemental Responses to Form Interrogatories (indicating no change), and Defendant’s Supplemental Responses to Request for Production of Documents (with no attached documents); and (3) Defendant has failed to post the Court ordered undertaking.
The Court has reviewed the Exhibits attached to Mr. Saucedo’s Declaration. The Court notes that there is no Exhibit containing Defendant’s Supplemental Responses to Form Interrogatories, therefore the Court is not in a position to determine the sufficiency or veracity of the responses to date. Further, Plaintiff does not argue that the Statement of Damages provided by Defendant on September 5, 2018 is deficient. Given the evidence presented, the Court declines to order terminating, issue, or evidentiary sanctions at this time. Terminating, issue, and evidentiary sanctions are severe and to be used sparingly. While the Court does not condone Defendant’s failure to comply with a Court Order, the Court cannot conclude that Defendant’s actions justify the severe imposition of terminating sanctions. However, Plaintiff is entitled to the discovery sought. The Court notes that Plaintiff is not precluded from seeking issue or evidentiary sanctions from the trial court.
Therefore, Defendant is ORDERED to provide further verified written responses, without objection to Plaintiff’s Form Interrogatories, and Plaintiff’s Request for Production of Documents, together with all responsive documents in his possession, custody, or control, no later than 15 calendar days from the date of this hearing. Defendant is RE-ORDERED to post a bond in the amount of $65,000.00 no later than 15 calendar days from the date of this hearing.
Moreover, the Court finds monetary sanctions are appropriate where the instant Motion is unopposed, and Defendant essentially concedes that his “supplemental” responses are inadequate. Monetary sanctions are granted, as indicated above.