DAVID GUEVARA VS ULTIMATE SECURITY SERVICES, INC.; ET AL

Tentative Rulings

Case Number: ****2160    Hearing Date: November 07, 2019    Dept: B

Hearing Date: November 7, 2019

Moving Parties: Plaintiff David Guevara

Responding Party: Defendants Ultimate Security Services, Inc. and Bertin Gnagbe

Motion for Terminating Sanctions Against Defendants for Failure to Obey the Court’s Order and for Further Monetary Sanctions

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. Defendants’ answers are STRICKEN and defaults entered against them.

BACKGROUND

On June 30, 2017, David Guevara filed a complaint against Ultimate Security Services, Inc. and Bertin Gnagbe for violations of the Labor Code and for conversion.

On August 31, 2017, plaintiff filed a FAC and added a cause of action for retaliation.

On April 10, 2018, plaintiff filed a SAC for 14 causes of action.

On August 28, 2019, the court granted plaintiff’s motions to compel defendants to serve responses.

DISCUSSION

Plaintiff requests terminating sanctions against defendants. Plaintiff also requests monetary sanctions in the amount of $2,985 against both defendants and defense counsel.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP ; 2025.450(h) (depositions); ; 2030.290(c) (interrogatories); ; 2031.300(c) (demands for production of documents). CCP ; 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP ; 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [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.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[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.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

At the hearing on August 28, 2019, the court ordered defendants to serve verified responses without objections to plaintiff’s special interrogatories, sets one and two, and demand for production of documents, set two and to produce responsive doucments, within 20 days. The court ordered defendants to each pay $1,055 within 30 days.

Plaintiff contends that defendants have not complied with the August 28 order.

In opposition, defense counsel states in his declaration that his clients informed him that they are unable to participate in this lawsuit because of financial problems and Gnagbe’s health condition. Defense counsel states that, “Gnagbe informed me that he cannot participate in any aspect of this case at this time because he is emotionally, physically, and fiscally down and out. Gnagbe has not cooperated with me in providing responses to Plaintiff’s discoveries and complying with court orders despite my many attempts.”

A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ;Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 610, 615.

The court finds though that both defendants have engaged in conduct that is a misuse of the discovery process by disobeying the court’s August 28, 2019 order to serve responses and to produce documents. CCP ;; 2023.010(g), 2023.030. The court thus finds that it is appropriate, and exercises its discretion, to impose terminating sanctions. CCP ; 2023.030(d)(1). The court declines to impose additional monetary sanctions against defendants. Terminating sanctions are adequate. Further, additional monetary sanctions against defense counsel are not warranted.

The motion is GRANTED. Defendants’ answers are STRICKEN and defaults entered against them.

Plaintiff is ordered to give notice of the ruling.