PAMELA ELLISON VS MAGGIE MINNIE

Tentative Rulings

Case Number: 19STLC07727 Hearing Date: August 30, 2021 Dept: 26

Ellison v. Minnie, et\r\nal. 19STLC07727

MOTION FOR TERMINATING SANCTIONS AND\r\nMONETARY SANCTIONS

(CCP\r\n§ 2023.010)

TENTATIVE RULING:

Defendant Maggie Minnie’s Motion for Terminating and\r\nMonetary Sanctions is GRANTED AS TO TERMINATING SANCTIONS ONLY. THE COURT\r\nHEREBY DISMISSES PLAINTIFF PAMELA ELLISON’S COMPLAINT WITH PREJUDICE.

THE REQUEST FOR MONETARY SANCTIONS IS DENIED.

ANALYSIS:

Plaintiff Pamela\r\nEllison (“Plaintiff”) filed the instant action for motor vehicle negligence\r\nagainst Defendant Maggie Minnie\r\n(“Defendant”) on August 20, 2019. On January 14, 2021, the Court granted Defendant’s motion to compel\r\nPlaintiff’s responses to form interrogatories, set one, and award monetary\r\nsanctions. (Minute Order, 01/14/21.)

Defendant\r\nfiled the instant Motion for Terminating Sanctions and Monetary\r\nSanctions on March 12, 2021. Plaintiff’s\r\ncounsel filed an opposing declaration on July 6, 2021.

The Motion was initially set for hearing on July 7, 2021. Prior\r\nto that date, the hearing was continued by the Court to August 30, 2021.

Legal Standard

Where a party willfully disobeys a discovery order, courts\r\nhave discretion to impose terminating, issue, evidence or monetary sanctions.\r\n(Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v.\r\nCreative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should\r\nlook to the totality of the circumstances in determining whether terminating\r\nsanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225,\r\n1246.) Ultimate discovery sanctions are justified where there is a willful\r\ndiscovery order violation, a history of abuse, and evidence showing that less\r\nsevere sanctions would not produce compliance with discovery rules. (Van\r\nSickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as\r\nsevere as dismissal or default is not authorized where noncompliance with\r\ndiscovery is caused by an inability to comply rather than willfulness or bad\r\nfaith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “The court\r\nmay impose a terminating sanction by one of the following orders:

(1) An\r\norder striking out the pleadings or parts of the pleadings of any party\r\nengaging in the misuse of the discovery process.

(2) An\r\norder staying further proceedings by that party until an order for discovery is\r\nobeyed.

(3) An\r\norder dismissing the action, or any part of the action, of that party.

(4) An\r\norder rendering a judgment by default against that party.”

(Code Civ. Proc., § 2023.030, subd. (d).)

Discussion

The Court granted Defendant’s discovery motion and awarded\r\nmonetary sanctions against Plaintiff on January 14, 2021. (Minute Order,\r\n01/14/21.) Notice of the order was served on Plaintiff on the next day. (Notice\r\nof Ruling, filed 01/15/21.) To date, Plaintiff has not complied with the\r\nCourt’s orders nor paid the monetary sanctions as required. (Motion, Desalernos\r\nDecl., ¶¶4-5.)

The Court finds that terminating sanctions are warranted for\r\nPlaintiff’s non-compliance. Despite notice of the Court’s ruling, Plaintiff has\r\nnot served responses nor paid sanctions as ordered. Given the notice provided,\r\nthe Court finds the failure to comply with the discovery orders to be willful. The\r\nopposing declaration offered by Plaintiff’s attorney does not demonstrate any\r\nattempt to comply with the Court’s discovery orders or with Plaintiff’s\r\ndiscovery obligations under the Code of Civil Procedure. Instead, Plaintiff’s\r\ncounsel offers eleventh-hour and incompetent testimony, of which they have no\r\npersonal knowledge, that Plaintiff has “no medicals or record of any medical\r\ntreatment” regarding the accident at issue in this action. (Yeager Decl., filed\r\n07/06/21, ¶2.) Therefore, the Court does not find the declaration offers any\r\nreason to deny the request for terminating sanctions.

Although terminating sanctions are a harsh penalty,\r\nPlaintiff’s conduct demonstrates that her compliance with the Court’s orders\r\ncannot be achieved through lesser sanctions. “The court [is] not required to\r\nallow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet\r\nHealthsystem (2005) 128 Cal.App.4th 262, 280.)

In light of the award of terminating sanctions, Defendant’s\r\nrequests for monetary sanctions are denied as futile. Monetary sanctions were\r\npreviously awarded and remain unpaid.

Conclusion

Defendant Maggie Minnie’s Motion for Terminating and\r\nMonetary Sanctions is GRANTED AS TO TERMINATING SANCTIONS ONLY. THE COURT\r\nHEREBY DISMISSES PLAINTIFF PAMELA ELLISON’S COMPLAINT WITH PREJUDICE.

THE REQUEST FOR MONETARY SANCTION IS DENIED.

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Moving party to give notice.

Case Number: 19STLC07727 Hearing Date: July 8, 2021 Dept: 26

Due to Court's unavailability, Hearing on motion for terminating sanctions is continued to 08/19/2021 at 10:00 a.m."

Case Number: 19STLC07727    Hearing Date: January 14, 2021    Dept: 26

Ellison v. Minnie, et al.

MOTION TO COMPEL RESPONSES TO INTERROGATORIES;

(CCP § 2030.290)

TENTATIVE RULING:

Defendant Maggie Minnie’s Motion Compelling Plaintiff Pamela Ellison To Respond To Form Interrogatories, Set One and for Monetary Sanctions is GRANTED. PLAINTIFF IS TO SERVE VERIFIED RESPONSES WITHOUT OBJECTIONS WITHIN 20 DAYS’ SERVICE OF THIS ORDER. PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $340.00 TO DEFENSE COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Defendant Maggie Minnie (“Defendant”) propounded Form Interrogatories, Set One, on Plaintiff Pamela Ellison (“Plaintiff”) on May 13, 2020. (Motion, Wells Decl., Exh. A.) Following Plaintiff’s failure to provide timely responses, Defendant extended the deadline to serve verified responses. (Id. at Exh. B.) Following no response from Plaintiff after the second deadline, Defendant filed the instant Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions on August 20, 2020. Plaintiff filed an opposition on January 4, 2021.

There is no requirement for a prior meet and confer effort before a motion to compel initial responses can be filed. (Code Civ. Proc., § 2030.290.) Further, the motion can be brought any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2030.290.) The opposition states that responses to the form interrogatories were served on Defendant on December 23, 2020. (Opp., Yeager Decl., ¶2.) Plaintiff argues that the Motion is moot as a result and any award of sanctions should be reasonable.

The Court finds that Defendant is entitled to an order compelling Plaintiff to serve verified responses to the form interrogatories without objections. Although the opposition is supported by an attorney declaration regarding service of the responses, the responses themselves are not attached. The Court cannot find that the responses comply with the statutory requirements without reviewing them or unless Defendant states the responses are proper.

Plaintiff’s failure to timely respond constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions are appropriate under Code of Civil Procedure sections 2023.010 and 2023.030 and have been properly noticed. However, the amount sought is excessive under a lodestar calculation. Therefore, the request for sanctions is granted against Plaintiff in the amount of $340.00 based on one hour of attorney time billed at $250.00 an hour and $90.00 in filing costs. (Motion, Wells Decl., ¶5.)

Conclusion

Defendant Maggie Minnie’s Motion Compelling Plaintiff Pamela Ellison To Respond To Form Interrogatories, Set One and for Monetary Sanctions is GRANTED. Plaintiff is to serve verified responses without objections within 20 days’ service of this order. Plaintiff and counsel of record are jointly and severally ordered to pay sanctions of $340.00 to defense counsel within 20 days’ service of this order.

Moving party to give notice.