ARLENE ROEPKE VS JACOB IS A DOG LLC INC

Tentative Rulings

Case Number: ****9763 Hearing Date: October 7, 2021 Dept: 54

Hearing Date: October 7, 2021

Department 54, Judge Maurice A. Leiter

Motion for Terminating Sanctions

Moving Party: Defendant Jacob Is A Dog, LLC, dba Smartbox of Los Angeles

Responding Party: None

T/R: DEFENDANT’S MOTION FOR TERMINATING SANCTIONS IS GRANTED.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers and Plaintiff’s untimely objection.

BACKGROUND

On May 29, 2019, Plaintiff Arlene Roepke filed the operative fourth amended complaint (“4AC”) against Defendant Jacob is a Dog dba Smartbox of Los Angeles, asserting causes of action for (1) fraud; (2) conversion; (3) rescission; (4) breach of contract; (5) conspiracy; (6) unfair business practices; (7) declaratory relief; and (8) elder abuse. Plaintiff alleges she hired Defendant to store and move her personal property, consisting of heirlooms and antiques worth over $150,000.00. Plaintiff alleges she “was specifically told there would be manned security at all locations where her property would be stored, security cameras, codes required for entry and exit, and other extraordinary safeguards and security measures which allegedly put Defendants above standard in the industry for security and safeguarding the personal property of their clients.” (4AC ¶ 15.) Plaintiff’s items were picked up and put in a storage pod and were left in a flatbed truck on an open street from at least December 24, 2016 through December 27, 2016, instead of being placed at the secure storage facility. (4AC ¶ 24.) All of Plaintiff’s property was stolen off the trucks. (4AC ¶ 32.) After Plaintiff was informed of the theft, she spoke with a representative of Defendant, named “Tripp,” who stated that it was a common practice for Defendant’s employees to leave the last load of the day on the truck, and the workers wanted to leave for the holiday weekend. (4AC ¶ 33.) In addition, Plaintiff was told she could take her time insuring the property as Defendant would take special care to safeguard the property of the holiday. (4AC ¶ 30.)

ANALYSIS

It is a misuse of the discovery process to fail “to respond or to submit to an authorized method of discovery,” (CCP ; 2023.010(d)) or to disobey “a court order to provide discovery.” (CCP ; 2023.010(g).) Under CCP ; 2023.030, courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions after giving parties proper notice and the opportunity to be heard.

In determining whether sanctions should be imposed, courts consider the totality of the circumstances, including the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.) “The penalty 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.” (Wilson v. Jefferson (1985) 163 Cal. App. 3d 952, 959.)

Defendant moves for terminating sanctions against Plaintiff on the grounds that Plaintiff has failed to comply with the Court’s discovery order. On August 18, 2021, the Court granted Defendant’s motions to compel responses to discovery and ordered Plaintiff to provide responses within 15 days of notice of ruling. Defendant had served the subject discovery more than one year earlier, in April 2020. Plaintiff’s counsel was present at the August 18 hearing, and proper notice was given.

As of the filing of this motion, Plaintiff has failed to serve responses to the subject discovery. Trial is set for October 18, 2021.

Plaintiff has failed to oppose this motion. Plaintiff instead filed an untimely “objection,” arguing the motion is improper under Code of Civil Procedure ; 2024.020(a). Plaintiff is incorrect. “Indeed, though motions concerning discovery are generally to be heard no less than 15 days before the date initially set for trial (Code Civ. Proc., ; 2024.020, subd. (a)), the Civil Discovery Act does not on its face limit the ability of the trial court to impose sanctions for violation of its provisions to prejudgment motions for sanctions. If we were to construe the Civil Discovery Act as being so limited, it would permit the absurd situation in which those who have misused the discovery process can avoid penalty if they are able to keep their misuse secret until after that deadline passes.” (Dep't of Forestry & Fire Prot. v. Howell (2017) 18 Cal. App. 5th 154, 197.)

Notably, Plaintiff’s objection does not state that Plaintiff has complied with the Court’s August 18, 2021 Order.

Plaintiff’s failure to comply with the Court’s August 18, 2021 Order is a clear discovery abuse. This action is four years old and trial is set for two weeks from this hearing. Plaintiff’s failure to provide discovery responses, respond to Defendant’s motions, and comply with the Court’s Order show Plaintiff’s willful refusal to litigate this case in compliance with the Code of Civil Procedure. Plaintiff’s actions (and inaction) significantly impede Defendant’s ability to defend itself. The Court finds that Defendant’s interests cannot at this point be protected with sanctions less than terminating the case.

Defendant’s motion for terminating sanctions is GRANTED.

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Case Number: ****9763 Hearing Date: August 18, 2021 Dept: 54

Hearing Date: August 18, 2021

Department 54, Judge Maurice A. Leiter

(2) Motions to Compel Responses to Discovery

Moving Party: Defendant Jacob Is A Dog, LLC dba Smartbox of Los Angeles

Responding Party: None

T/R: DEFENDANT’S MOTIONS TO COMPEL DISCOVERY ARE GRANTED.

PLAINTIFF TO SERVE VERIFIED RESPONSES, WITHOUT OBJECTION, TO THE SUBJECT DISCOVERY WITHIN 15 DAYS OF NOTICE OF RULING.

DEFENDANT’S REQUEST FOR SANCTIONS IS GRANTED IN THE TOTAL AMOUNT OF $1,077.50.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at ;SMCdept54@lacourt.org ;with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers. No opposition has been received.

When timely responses to interrogatories are not received, “[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (CCP ; 2030.290(b).) “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it. . . [t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product. . . . The party making the demand may move for an order compelling response to the demand.” (CCP ; 2031.300(a)–(b).)

Defendant moves to compel responses to form interrogatories, set one, and requests for production of documents, set one, from Plaintiff. Defendant served discovery on Plaintiff on April 1, 2020. On June 4, 2020, Plaintiff served responses to requests for admissions, but did not provide responses to the remaining discovery. Defendant, via email, requested responses to discovery several times over the last year, but to no avail. As of the filing of this motion, responses have not been received. Plaintiff has not opposed this motion to show responses have been served. The motions are GRANTED.

Defendant seeks $1,077.50 in sanctions for each motion. As the motions are largely duplicative, the Court will allow a total award of $1,077.50 in sanctions.