CASE NAME: DOE vs.? MOUNT DIABLO UNIFIED SCHOOL DISTRICT
HEARING ON MOTION FOR TERMINATING SANCTIONS AGAINST DOES 10 AND 11
FILED BY MOUNT DIABLO UNIFIED SCHOOL DISTRICT
* TENTATIVE RULING:?
Before the Court is a motion for terminating sanctions (the ?Motion?) brought by Defendants Mt. Diablo Unified School District and various individually-named defendants (collectively, ?Mt. Diablo?).? The Motion seeks additional monetary sanctions, as well as a terminating sanction, against Does 11-12 for their conduct in the discovery process.
This is not the first discovery dispute between Mt. Diablo and Does 11-12 that has come before the Court.? On January 31, 2015, Mt. Diablo?s motion to compel discovery responses was heard by the Court.? Following that hearing, the Court ordered Does 11-12 to serve various discovery by the end of February 2015, and also to pay monetary sanctions.
Counsel for Does 11-12 admits that even after Mt. Diablo extended the Court-ordered deadline to serve the discovery, he failed to do so until May 20, 2015.? The opposition indicates that on May 20 the relevant discovery responses were hand-served on Mt. Diablo, along with a check satisfying the monetary sanctions imposed by the Court.
In its reply, Mt. Diablo argues that the responses that were served on May 20 were deficient, and that counsel for Does 11-12 only partially satisfied the monetary sanctions that were imposed by the Court.
In the first instance, the sufficiency of the May 20 responses is not before the Court at this time.? The Court therefore declines to issue what would be, in effect, an advisory opinion on that issue.? The Motion requires the Court to answer only two questions:
- Should a terminating sanction be imposed on Does 11-12 for their discovery conduct?
- Should additional monetary sanctions be imposed on Does 11-12 and/or their counsel in light of their discovery conduct?
As to the first question, it is clear that terminating sanctions are not warranted at this time.? In weighing whether to impose a terminating sanction, this Court ?should consider both the conduct being sanctioned and its effect on the party seeking discovery.?? Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.? The Court must ?tailor the sanction to the harm caused by the withheld discovery.?? Id.
Here, this case is still in the early stages of discovery.? Mt. Diablo has failed to identify any real prejudice it would suffer by receiving the information and documents in the near future, rather than immediately.? Imposing a terminating sanction at this juncture would not ?tailor?the sanction to the harm caused,? as the Court is required to do.
Further, the ?discovery statutes evince an incremental approach to discovery sanctions,? and a ?decision to issue terminating sanctions should not be made lightly.?? Doppes, supra, 174 Cal.App.4th at p. 992.? Doppes is instructive.? In that case, the defendant had ?steadfastly failed? to provide discovery, and had violated four separate discovery orders. Id. at p. 993.? And some of defendant?s egregious abuses were discovered during trial, causing serious prejudice to plaintiff in presenting the case.? The appellate court found that failing to impose a terminating sanction was an abuse of discretion in light of defendant?s pattern of discovery abuse. Id.
Here, Does 11-12 have been sanctioned on only one previous instance.? And they have made at least some effort to provide the requested information and documents.? On this record, the Court cannot conclude that they have engaged in a ?steadfast failure? to provide discovery, or that a terminating sanction at this juncture would be tailored to the harm?caused.
The request for a terminating sanction is DENIED.
The Court next turns to Mt. Diablo?s request for further monetary sanctions.? The Court finds these to be warranted and this request is GRANTED.? Counsel for Does 11-12 admits that it was his lack of diligence which necessitated the Motion.
As a result, the Court sanctions counsel ? and only counsel, not Does 11-12 ? in the following amounts: (1) $275 (representing the unpaid balance of the previous sanction imposed by the Court); (2) $962.50 (the amount required for Mt. Diablo to prepare the Motion); and (3) such further amount as is reasonable and necessary to compensate Mt.?Diablo for preparing the reply in support of the Motion and for appearing at a hearing on this matter, if any is held.
With respect to the amounts set forth in (1) and (2) above (a total of $1,237.50), Counsel for Does 11-12 shall take all steps necessary to ensure that it is paid in full by June 19, 2015.? As to (3), Counsel for Mt. Diablo may indicate the relevant amount to the Court at any hearing on this matter, and the Court will rule on what, if any, further sanctions are to be awarded and when they are to be paid.? Should no hearing take place, counsel shall serve and file a declaration setting forth the evidence supporting such further amounts on or before June 10, 2015, along with a proposed form of order, and the Court will issue an order via File & Serve Xpress on that?issue.
With respect to the written discovery that is the underlying subject of this Motion, the Court ordinarily would not involve itself in what may be considered to be a ?run of the mill? discovery dispute.? However, it appears clear that the parties may require the Court?s guidance to resolve this dispute, and so the Court provides it.
It does not appear that any meaningful meet and confer has taken place concerning the substance of the discovery at issue.? Counsel for Mt. Diablo and counsel for Does 11-12 are ordered to meet and confer concerning any remaining disputes in person.? The meet and confer shall take place at a reasonably selected location of Mt. Diablo?s choosing in Contra Costa County, at a date and time to be mutually agreed upon, but in no event later than June 30, 2015.? The?parties will discuss the discovery in good faith until all issues are resolved, or for a minimum of two (2) hours, whichever occurs first.? If a discovery motion follows, the moving party shall state under penalty of perjury that the above-ordered meet and confer took place, or shall explain why it could not take place.? The Court will consider awarding reasonable and necessary fees and expenses related to the above-ordered meet and confer as a component of sanctions awardable to a prevailing party on any future motion concerning this discovery.
Finally, the Court is compelled to observe that it is troubled by the conduct of counsel for Does 11-12.? Therefore, the court hereby orders that counsel for Does 11-12 and his clients (the guardians ad litem) appear personally in court at all future discovery hearings.? The Court takes compliance with its orders very seriously and expects counsel do so as well.