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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Dean Glover v. Ralphs Grocery Company

Case No: 17CV01642
Hearing Date: Mon Jan 08, 2018 9:30

Nature of Proceedings: Motion Dismiss Comp. for Failure to Comply with Crt Orders re Discovery/Sanctions

 

 

 

# 17CV01642  Dean Glover v. Ralphs Grocery Company

 

                        Hearing Date: 1/8/18                                                          

HEARING:     Defendant’s motion to dismiss plaintiff’s complaint for failure to comply with court orders regarding discovery and for sanctions

          

ATTORNEYS:          

Trevor Quirk for plaintiff

Gregory E. Stone / Suzanne R. Feffer of Stone Dean LLP for defendant

                       

TENTATIVE RULING:          The motion to dismiss is denied. The Court will, however, order that plaintiff provide the further verified responses to discovery previously ordered by the Court, and will order plaintiff, his former attorney (Jay Valentine), or both, to pay sanctions of $960 to defendant. As noted above, it is entirely unclear to the Court whether plaintiff’s current attorney is aware of the pendency of this motion. If plaintiff’s current counsel appears (in some form) at the hearing, the Court will order that plaintiff provide the further verified responses previously ordered by the Court on or before January 29, 2018, or such other date upon which the parties mutually agree. If plaintiff’s current counsel does not appear (in some form) at the hearing, the Court will order that the further verified responses previously ordered by the Court be provided within 21 days after being served with the court’s order on this motion, with such date extended as appropriate by the terms of Code of Civil Procedure section 1013(a).

 

 

Background: This action arose from a slip-and-fall accident which occurred on April 21, 2015, at the Ralph’s store located at 100 West Carrillo Street in Santa Barbara. Plaintiff filed his complaint for negligence on April 14, 2017, while in pro per. Attorney Jay Valentine substituted in as his attorney of record on May 16, 2017.

 

Ralphs filed three motions to compel further responses to written discovery, and one motion to compel plaintiff to submit to a deposition, on September 6, 2017. Plaintiff filed late opposition to the motions three days before their October 2, 2017 hearing date, contending that he had agreed to cure any discovery complaints, and the parties had agreed to a date for the deposition. The Court granted the motions to compel, ordering plaintiff to provide further responses to specified written discovery, on or before October 17, 2017. Plaintiff and his attorney were ordered to pay sanctions to Ralphs.

 

Plaintiff failed to provide the court-ordered further responses on October 17, 2017, or at any other time.

 

Ralphs filed the current motion to dismiss plaintiff’s complaint on November 21, 2017. Plaintiff has now substituted attorney Valentine out of the action, and has substituted in attorney Trevor Quirk as his attorney of record. The Substitution of Attorneys form was executed in early December, but was not officially filed until December 27, 2017, after having been initially rejected by the court clerk because it was not e-filed.

 

Plaintiff’s current counsel has not filed anything since his substitution, and it is not clear to the Court whether he is aware of the pendency of the current motion.

 

Motion: Ralphs has moved for terminating sanctions, seeking to dismiss plaintiff’s complaint as a result of his disregard for the discovery process and the court orders compelling further responses to discovery served upon him by Ralphs. In the event the court does not dismiss the action, Ralphs seeks $960 in sanctions against plaintiff and attorney Valentine.

 

Attorney Valentine, who as of the time of hearing on this motion is no longer plaintiff’s attorney of record, filed a minimal opposition to the motion. The opposition was not supported by any evidence, and asserted that plaintiff has no intention of not complying with the court orders and participating in the discovery process, but has been under tremendous stress and emotional pain due to family issues. If provided another chance, plaintiff believes he can comply with all orders. Counsel specifically requested oral argument, and stated that plaintiff intends to testify as to the issues at the hearing.

 

In reply, Ralphs also requests oral argument, noting that the opposition does not contain any declaration to support its contentions, and failed to reference any effort to seek informal agreement from Ralphs for additional time to respond to the court’s orders. Further, plaintiff makes no attempt to assert that monetary sanctions should not issue if he is given another chance to comply. Plaintiff seeks that further chance after requesting and receiving at the hearing additional time to comply with the court’s orders than was provided for in the tentative ruling, still has not complied, and apparently has no intention of complying until after the January hearing, nearly two months since the expiration of the court’s compliance date.

 

Analysis: The motion to dismiss is denied; the Court will, however, order that plaintiff provide the further verified responses to discovery previously ordered by the Court, on or before January 29, 2018, or such other date upon which the parties shall mutually agree, or which is ordered by the Court. The Court will further order sanctions of $960 to be paid by plaintiff, his former attorney (Jay Valentine), or both.

 

The motions to compel previously granted by the Court related to interrogatories (both form and special interrogatories), and a demand for production of documents. Pursuant to Code of Civil Procedure sections 2023.010(g), 2030.300(e), and 2031.310(i), if a party fails to obey an order compelling further responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and may also impose a monetary sanction either in lieu of or in addition to that sanction. The court has broad discretion in selecting the appropriate penalty. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Enhanced (non-monetary) sanctions are also largely available only when the failure to comply with the court order was willful. (See, e.g., Biles v. Exxon Mobil Corporation (2004) 124 Cal.App.4th 1315, 1327.) Further, the court’s discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information. (Marriage of Economou (1990) 224 Cal.App.3d 1466, 1475.) Sanctions may also not be imposed solely to punish the offending party. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 214.) Further, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable. (Rutledge v. Hewlett-Packard Company (2015) 238 Cal.App.4th 1164, 1193.)

 

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bendley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) 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. (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604–605.)

 

The Court’s task here is therefore to (1) determine whether plaintiff violated the court orders, (2) if he did, to ascertain whether such violation was willful, or whether the violation might have resulted from mere carelessness or inattention, and (3) if the violation was willful, to determine whether the requested terminating sanction is consistent with the basic purpose of compelling disclosure of discoverable information, is not being sought simply to punish the offending party, and will not provide a windfall to defendant.

 

Certainly, it is clear that plaintiff violated the court orders. It is less clear whether that violation was willful, or might instead have resulted from carelessness or inattention. It is also not clear whether the failure to comply with the court orders was attributable to plaintiff himself, his former attorney, or some combination of the two. The very few documents filed by plaintiff’s prior attorney during his short term as plaintiff’s attorney of record have left the court with the impression that he gave this case considerably less than his full attention. If that is the case, it would be manifestly unfair to penalize plaintiff by dismissing his entire action. Under those circumstances, a terminating sanction would not be consistent with the basic purpose of compelling disclosure of discoverable information, rather than simply punishing the offending party and providing a windfall to the defendant.

 

There has also been some suggestion (made by plaintiff’s former attorney in his considerably less-than-comprehensive opposition to the motion to dismiss) that plaintiff has, himself, been acting under circumstances which have made it difficult for him to respond to the discovery. Again, to dismiss the action under those circumstances would not be consistent with the basic purpose of compelling disclosure of discoverable information, rather than simply punishing the offending party and providing a windfall to the defendant.

 

Either way, the Court cannot find that plaintiff’s failure to comply with the court’s prior orders compelling further responses to discovery was clearly willful. Additionally, the limited record before the Court does not show that lesser sanctions would necessarily be ineffective, particularly given plaintiff’s recent change of counsel. As a result, imposing a terminating sanction would be inappropriate.

 

Consequently, the Court will deny the motion to dismiss. The Court will, however, order that plaintiff provide the further verified responses to discovery previously ordered by the Court, and will order plaintiff, his former attorney (Jay Valentine), or both, to pay sanctions of $960 to defendant. As noted above, it is entirely unclear to the Court whether plaintiff’s current attorney is aware of the pendency of this motion. If plaintiff’s current counsel appears (in some form) at the hearing, the Court will order that plaintiff provide the further verified responses previously ordered by the Court on or before January 29, 2018, or such other date upon which the parties mutually agree. If plaintiff’s current counsel does not appear (in some form) at the hearing, the Court will order that the further verified responses previously ordered by the Court be provided within 21 days after being served with the court’s order on this motion, with such date extended as appropriate by the terms of Code of Civil Procedure section 1013(a).

 

Should plaintiff again fail to comply, the Court would be willing to revisit the issue of evidence, issue, or terminating sanctions, upon appropriate motion brought by defendant.

 

 
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