Cano v. O'Grady

“The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c); see also Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.

Terminating sanctions are considered more severe and are imposed by: (1) striking out the pleadings, or parts of the pleadings, of any party engaging in the misuse of the discovery process, (2) staying further proceedings by that party until an order for discovery is obeyed, (3) dismissing the action, or any part of the action, or (4) rendering judgment by default against that party. (Code Civ. Proc., § 2023.030, subd. (d).)

“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.)

In order to impose issue, evidence, or terminating sanctions, the party subject to more serious sanctions must have failed to comply with previously issued court orders and the failure must be willful. (See Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559 [“[A]bsent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the

imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.”].)

However, “[s]ome courts have held that the more serious sanctions may be imposed . . . even where no specific order has been violated, but those cases have involved repeated and willful refusals to permit discovery or produce documents over a lengthy period of time which resulted in evidence becoming unavailable.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1399.)

As the Court of Appeal has explained:

[T]he courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is “tailor[ed] . . . to the harm caused by the withheld discovery.”

(Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604, citations omitted, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

“The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Although in extreme cases a court has the authority to order a terminating sanction as a first measure, 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., supra, 246 Cal.App.4th at pp. 604-605, quoting Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992, italics original; see also Los Defensores, Inc. v. Gomez, supra, 223 Cal.App.4th at p. 390 [“[A] decision to order terminating sanctions should not be made lightly.”].)

“The purpose of discovery sanctions ‘is not to provide a weapon for punishment, forfeiture and

the avoidance of a trial on the merits’ but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 301, citations omitted, quoting Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303; see In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 109 [“In exercising its broad discretion to sanction discovery abuses, the trial court may impose any sanction authorized by statute that will enable the party seeking discovery to obtain the objects of the discovery sought.”].)

However, terminating sanctions are warranted where a party repeatedly failed to respond to discovery responses for nearly one year, and disregarded two court orders, including one order warning that terminating sanctions would be the next step. (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069.)

Here, Defendant NM Law has submitted evidence that Plaintiff misused the discovery process by failing to comply with this court’s February 2, 2026 order, in which the court ordered Plaintiff to provide, within 14 days, code-compliant responses without objections to Defendant NM Law’s form interrogatories, special interrogatories, and requests for production. (See ROA # 82.)

However, Defendant NM Law points to no facts or evidence to show that Plaintiff’s failure to comply was willful. In fact, the record shows Defendant NM Law filed this motion the day after Plaintiff’s discovery responses were due and presents no evidence that it attempted to contact Plaintiff.

Further, there is no evidence Plaintiff has violated any court orders other than the February 2, 2026 court order or that this case “involved repeated and willful refusals to permit discovery or produce documents over a lengthy period of time which resulted in evidence becoming unavailable.” (Maldonado v. Superior Court, supra, 94 Cal.App.4th at p. 1399.)

Thus, granting evidentiary or terminating sanctions would deviate from the incremental approach that this court must take to ensure the guidance that “[d]iscovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to

protect the interest of the party entitled to but denied discovery.’” (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992, quoting Laguna Autobody v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.)

Therefore, the court will deny the request for evidentiary and terminating sanctions.

Standard for Monetary Discovery Sanctions

On the other hand, willfulness is not required for the imposition of monetary sanctions. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878; Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286.)

A trial court has “every right to impose a monetary sanction to compel obedience to its lawful orders, or to punish disobedience and disrespect of the court’s processes.” (20th Century Ins. Co. v. Choong (2000) 79 Cal.App.4th 1274, 1278.)

Here, there is no indication that Plaintiff has responded to the discovery requests.

The court therefore will grant Defendant NM Law’s request for monetary sanctions.

However, the amount of monetary sanctions requested is excessive and the court will reduce the amount accordingly.

In light of the court’s award of monetary sanctions to Defendant NM Law, the court finds it unnecessary to award monetary sanctions pursuant to Civil Procedure Code section 177.5 and will exercise its discretion to deny that request.

Defendant NM Law shall give notice of this ruling.

11 Cliq, Inc. vs. Capital Motions for Attorney’s Fees and Motions to Strike Managers, LLC and/or Tax Costs

The court will hear from the parties regarding their 30-2021-01220754 efforts to agree upon the appointment of a referee to prepare a report and make recommendations on the parties’ respective motions for attorney’s fees and motions to strike and/or tax costs.