RAMON NOCHEZ AGUILAR VS OK SUH KIM, ET AL.

Tentative Rulings

Case Number: 18STLC14141    Hearing Date: March 24, 2021    Dept: 26

Aguilar v. Kim, et al. 

TENTATIVE RULING:

Defendants Ok Suh Kim and Sung Hee Ryu’s Motion for Terminating Sanctions is GRANTED. THE COURT HEREBY DISMISSES PLAINTIFF ROMAN NOCHEZ AGUILAR’S COMPLAINT WITH PREJUDICE.

THE REQUEST FOR EVIDENTIARY, ISSUE OR MONETARY SANCTIONS IS DENIED.

ANALYSIS:

Plaintiff Ramon Nochez Aguilar (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Ok Suh Kim and Sung Hee Ryu (“Defendants”) on November 21, 2018. On July 15, 2020, the Court granted Defendants’ motions to compel Plaintiff’s responses to written discovery. (Minute Order, 07/15/20.) The Court ordered Plaintiff to serve responses to the discovery within 20 days’ notice of the order and to pay monetary sanctions within 30 days’ notice of the order. (Ibid.) Notice of the ruling was served on Plaintiff on the same date. (Notice of Ruling, filed 7/15/20.)

Defendants filed the instant Motion for Terminating Sanctions, or in the alternative, Sanctions for Violation of a Court Order on September 14, 2020. To date, no opposition has been filed.

Discussion

Code of Civil Procedure section 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a “drastic measure which should be employed with caution.” (Deyo, 84 Cal.App.3d at 793.) “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these 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, 84 Cal.App.3d at 793.) “[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.” (Id.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

“A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions….: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327. But see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 [“willfulness is no longer a requirement for the imposition of discovery sanctions.”].)

Consequently, where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) 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.) “[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.) Pursuant to CCP § 2023.030(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.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

Nonetheless, given the drastic nature of terminating sanctions, they should be treated as a measure of last resort: “[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 & Tract Soc'y of N.Y., Inc. (2016) 246 Cal.App.4th 566, 604.) For example, the court of appeal in Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. disapproved of the superior court’s imposition of terminating sanctions as the first response to a party’s willful violation of a document production order without determining that lesser sanctions would be ineffective.

Nevertheless, there are occasions when terminating sanctions “may still be appropriate ‘as a first measure’ in ‘extreme cases’ where a litigant violates a court order and persists in the outright refusal to comply with [its] discovery obligations. Put differently, the imposition of lesser sanctions is ‘not an absolute prerequisite’ to the imposition of terminating sanctions for violation of a court order.” (Siry Inv., L.P. v. Farkhondehpour (2020) 45 Cal. App. 5th 1098, 1118-1119, review granted July 8, 2020, S262081.)

The Court granted Defendants’ discovery motions on July 15, 2020 and notice of the order was served on Plaintiff’s through their counsel on the same date. (Motion, Denny Decl., ¶11 and Exh. M.) Plaintiff’s service of non-compliant responses prior to the hearing--but after the motions to compel were filed—did not relieve him of the obligation to serve responses in accordance with the Court’s order. (See id. at ¶9 and Exh. L.) The Court ordered Plaintiff to file responses and produce documents within 30 days notice of the court’s order. The initial discovery requests were made on March 13, 2019 and responses were due on April 17, 2019. (Motion, Denny Decl., ¶3 and Exh. A.) Now, 23 months after the responses were originally due and eight months after the Court’s July 15, 2020 discovery order was entered, Plaintiff has not served responses, nor further responded to Defendants’ meet and confer efforts. (Id. at ¶12.)

The court finds that terminating sanctions are warranted for Plaintiff’s persistent non-compliance. Despite notice of the Court’s order, Plaintiff did not comply. Given the notice provided, the Court finds Plaintiff’s failure to comply with the Court’s July 15, 2020 order to be willful. Furthermore, although Plaintiff was properly served with the instant Motion for Terminating Sanctions, no opposition has been filed.

Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Plaintiff’s compliance with the Court’s orders cannot be achieved through lesser sanctions. Monetary sanctions were previously awarded on July 15, 2020 and remain unpaid. (Motion, Denny Decl., ¶12.) As such, an additional award of monetary sanctions would be futile.

Indeed, it appears that Plaintiff has no intention of complying with the Court’s orders or prosecuting the claims against Defendant. “The court [is] not required to allow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280.)

Defendants’ alternative request for evidentiary, issue or monetary sanctions is denied.

Conclusion

Defendants Ok Suh Kim and Sung Hee Ryu’s Motion for Terminating Sanctions is GRANTED. THE COURT HEREBY DISMISSES PLAINTIFF ROMAN NOCHEZ AGUILAR’S COMPLAINT WITH PREJUDICE.

THE REQUEST FOR EVIDENTIARY, ISSUE OR MONETARY SANCTIONS IS DENIED.

Case Number: 18STLC14141    Hearing Date: January 13, 2021    Dept: 26

Aguilar v. Kim, et al.

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

(CCP § 2033.280)

TENTATIVE RULING:

Defendants Ok Suh Kim and Sung Hee Ryu’s Motion to Deem Requests for Admission Admitted Against Plaintiff Roman Nochez Aguilar is GRANTED. PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $260.00 TO DEFENSE COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On May 21, 2020, Defendants Ok Suh Kim and Sung Hee Ryu (“Defendants”) served Requests for Admissions on Plaintiff Roman Nochez Aguilar (“Plaintiff”). (Motion, Denny Decl., Exh. A.) As of the filing of this Motion, Defendants have not received any verified responses to the discovery requests propounded on Plaintiff. (Id. at ¶5.) As a result, Defendants filed the instant Motion to Deem the Truth of Matters Specified in Requests for Admissions to Plaintiff as Admitted and for Monetary Sanctions (the “Motion”) on September 14, 2020. To date, no opposition has been filed.

Plaintiff has not provided verified responses to the discovery propounded on May 21, 2020 as of the filing of the Motion. There is no requirement for a prior meet and confer effort before a motion to deem requests for admission can be filed. (Code Civ. Proc., § 2033.280.) Further, the motion can be brought any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2033.280.) Therefore, Defendants are entitled to an order deeming the Requests for Admission admitted. (Code Civ. Proc., § 2033.280.) Sanctions are required under Code of Civil Procedure sections 2023.010, 2023.030 and 2033.280, and have been properly noticed. However, the amount sought is excessive under a lodestar calculation. Sanctions are granted against Plaintiff in the amount of $260.00, based on one hour of attorney time billed at $200.00 per hour, plus the $60.00 filing fee. (Motion, Denny Decl., ¶6.)

Based on the foregoing, Defendants Ok Suh Kim and Sung Hee Ryu’s Motion to Deem Requests for Admission Admitted Against Plaintiff Roman Nochez Aguilar is GRANTED. PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $260.00 TO DEFENSE COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.

Case Number: 18STLC14141    Hearing Date: July 15, 2020    Dept: 26

Aguilar v. Kim, et al.

MOTION TO COMPEL RESPONSES TO INTERROGATORIES, REQUEST FOR PRODUCTION; REQUEST FOR SANCTIONS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendants Ok Suh Kim and Sung Hee Ryu’s (1) Motion For Order Compelling Plaintiff To Respond to Form Interrogatories; Request for Sanctions; and (2) Motion For Order Compelling Plaintiff to Respond to Request for Production of Documents; Request For Sanctions are GRANTED. PLAINTIFF TO SERVE VERIFIED RESPONSES WITHOUT OBJECTION TO THE DISCOVERY REQUESTS WITHIN 20 DAYS’ NOTICE OF THIS ORDER. THE COURT FURTHER ORDERS THAT PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY TO PAY SANCTIONS OF $520.00 TO DEFENSE COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

ANALYSIS:

Plaintiff Ramon Nochez Aguilar (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Ok Suh Kim and Sung Hee Ryu (“Defendants”) on November 21, 2018. On March 13, 2019, Defendants served Form Interrogatories and Request for Production of Documents on Plaintiff by mail. (Motions, Ash Decl. ¶3 and Exh. A.) Responses were due by April 17, 2019. (Code Civ. Proc., §§ 2030.260, 2031.250.) Despite numerous meet and confer efforts, Plaintiff has yet to serve responses to the written discovery. (Motions, Ash Decl., ¶¶4-7 and Exhs. B-F.) Defendants filed the instant Motions on January 28, 2020. To date, no oppositions have been filed.

The failure to timely serve responses, whether containing objections, or facts, or both, results in waiver of all objections. (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 658.)

Based on Plaintiff’s failure to timely respond to the propounded discovery requests, Defendants are entitled to verified responses without objections to the interrogatories and requests for production within twenty (20) days of notice of this Order. (Code Civ. Proc., §§ 2030.290, 2031.300.)

The Court also finds that Plaintiff’s failure to respond is a misuse of the discovery procedures. (Code Civ. Proc., § 2023.010, et seq.) The requested sanctions have been properly noticed but are excessive give the simplicity of these unopposed motions. Sanctions are appropriate in the amount of $520.00 based on two hours of attorney time billed at $200.00 per hour, plus two filing fees of $60.00 each. (Motions, Ash Decl., ¶9.) Sanctions of $520.00, awarded jointly and severally against Plaintiff and his counsel of record, are to be paid within thirty (30) days from notice of this Order.

Therefore, Defendants Ok Suh Kim and Sung Hee Ryu’s (1) Motion For Order Compelling Plaintiff To Respond to Form Interrogatories; Request for Sanctions; and (2) Motion For Order Compelling Plaintiff to Respond to Request for Production of Documents; Request For Sanctions are GRANTED. PLAINTIFF TO SERVE VERIFIED RESPONSES WITHOUT OBJECTION TO THE DISCOVERY REQUESTS WITHIN 20 DAYS’ NOTICE OF THIS ORDER. THE COURT FURTHER ORDERS THAT PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY TO PAY SANCTIONS OF $520.00 TO DEFENSE COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.