LUIS ZULETA, et al.,

Plaintiffs,

vs.

 

ELIZA KIM, etc., et al. 

 

Defendants.

        CASE NO.: 18STCV04485

 

[TENTATIVE] ORDER RE: MOTION FOR TERMINATION SANCTIONS

Date: February 4, 2020

Time: 8:30 a.m.

Dept. 56

FSC: February 10, 2020

Jury Trial: February 24, 2020

 

MOVING PARTIES: Plaintiffs Luis Zuleta; Jose Luis Moreno Rios; and Alvaro Vega

RESPONDING PARTY: Defendant Eliza Kim

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions taken against them as tenants as a result of them exercising their rights under the Los Angeles Rent Stabilization Ordinance.  Plaintiffs filed a complaint alleging causes of action for: (1) retaliation in violation of California Civil Code, Sections 1942.5(a) and 1942.5(d); (2) breach of the implied warranty of habitability; (3) violation of California Civil Code, Section 1940.2—covenant of quiet enjoyment; (4) violation of California Civil Code, Section 52.1—Bane Act; (5) breach of common law duty of care, including tortious negligence, negligence per se, and negligent infliction of emotional distress; (6) violation of California Civil Code, Section 1942.4; (7) unfair business practices in violation of California Business and Professions Code, Section 17200 et seq.; and (8) violation of Los Angeles Municipal Code, Sections 151.09 and 151.30.

Plaintiffs filed a motion for an order: (1) striking Defendant’s answer to Plaintiffs’ complaint; and (2) compelling Defendant to pay to the moving parties the reasonable attorneys’ fees and costs incurred in connection with their motion.

Plaintiffs’ motion is made on the grounds that: (1) Defendant defied this Court’s September 13, 2019 order compelling Defendant to further respond to discovery by October 14, 2019; (2) refused to further participate in this case until trial; (3) refused to appear for her deposition until February 2020, the month of trial; and (4) failed to appear at  an informal discovery conference held on December 17, 2019.

Defendant failed to file an opposing memorandum of points and authorities in response to Plaintiffs’ motion for terminating sanctions.  Defendant has only provided three declarations—her initial opposition declaration, a supplemental declaration, and a further supplemental declaration—in opposition to Plaintiffs’ motion for terminating sanctions.  The Court has discretion to grant Plaintiffs’ motion solely on the ground of Plaintiff failing to file an opposing memorandum of points and authorities; however, “[a] decision to order terminating sanctions should not be made lightly.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701.)  Thus, the Court will consider Defendant’s declarations in opposition to Plaintiffs’ motion in making its ruling.

Moreover, the Court will deny Plaintiffs’ request that: (1) Defendant be compelled to pay their reasonable costs and attorneys’ fees incurred in connection with their motion for terminating sanctions; and (2) a default judgment be entered in favor of Plaintiffs. “A basic rule of law and motion practice is the notice shall state in the opening paragraph the nature of the order being sought and on the grounds for the issuance of the order.”  (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207.)  Due process principles require that a notice of a motion state “the nature of the order being sought and the grounds for issuance of the order.”  (Id.)  Here, Plaintiffs failed to request that the Court enter a default judgment against Defendant in their notice of motion.  Also, the notice of motion fails to set forth the amount of attorneys’ fees and costs requested by Plaintiffs, and their declaration of counsel fails to set forth an hourly rate or time spent on their motion for terminating sanctions.

DISCUSSION

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.”  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)  “Discovery 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.”  (Id.)  “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.”  (Id.)  Where discovery violations are “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.”  (Id.)  “A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions.”  (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)  Where discovery sanctions are requested against a party, there must be: (1) 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.)  “A decision to order terminating sanctions should not be made lightly.”  (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701.)  A trial court can impose a terminating sanction “against anyone engaging in conduct that is a misuse of the discovery process.”  (Id. at 702.)  Where a trial court imposes a terminating sanction, a trial court can “strik[e] out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.”  (Id.)  A trial court’s order to impose terminating sanctions will be reversed only if it “was arbitrary, capricious, or whimsical.”  (Id.)  “[W]here 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.”  (Id.)  “[T]rial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)  Terminating sanctions are warranted when a party’s lack of compliance with the discovery process has caused the opposing party prejudice.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 989.)

Plaintiffs’ Evidence in Support of Terminating Sanctions

Plaintiffs present evidence in the form of a declaration from their counsel, Tyler Anderson (“Anderson”), who declares that: (1) Plaintiffs propounded written discovery on Defendant on February 15, 2019 (Anderson Decl. at ¶ 2 and Exhibits A and B); (2) Defendant first requested various extensions and then ultimately responded with pure objections on April 25, 2019 stating that she was refusing to comply with discovery in this case because she views it as frivolous (Id., ¶ 2 and Exhibits C  and D); (3) counsel for Plaintiffs attempted to call Defendant regarding discovery in this matter but she did not respond to their attempts to communicate (Id. at ¶ 4); (4) on April 29, 2019, counsel sent a detailed meet-and-confer letter to Defendant informing her that she was legally obligated to respond to discovery in this case despite her subjective belief about the frivolous nature of this case (Id. at ¶ 4 and Exhibit E); (5) Defendant hired herself to represent her in the discovery process but has not generally elected to hire an attorney and is representing herself pro se (Id. at ¶ 5 and Exhibit F); and (6) after Plaintiffs’ counsel attempted to meet-and-confer with Defendant, she refused to meet and confer, then demanded that Plaintiffs’ counsel meet and confer on a specific date.  (Id. at ¶ 6 and Exhibit G.)

Anderson also declares that: (1) Defendant hired an attorney to specifically represent her in the meet and confer process but that attorney cut off the meet and confer discussions after 45 minutes indicating that he had something else to do that Friday afternoon and was unavailable to meet and confer further, and refused to stipulate that the parties properly met-and-conferred (Id. at ¶ 7); (2) the attorney indicated he would move to sanction counsel for Plaintiffs if counsel filed a motion to compel further without agreeing to satisfy his schedule with regard to further meeting-and-conferring (Id.); (3) on that call with Defendant’s attorney it was apparent he was unfamiliar with the basic allegations in the complaint (Id.); (4) an extensive and contentious meet and confer process followed but it appeared that the parties could not resolve the issue without motions practice as Defendant’s counsel promised that Defendant would produce all responsive documents by June 21 (Id. at ¶ 8 and Exhibit H); (5) Defendant produced some documents on July 3 (Id. at ¶ 9 and Exhibits I and J); (6) based on his review of the documents, Defendant withheld the vast majority of responsive documents in her possession, custody, or control, only producing documents concerning her affirmative defense, her email exchanges with the HCID, and the first 100 pages of the over 500 page file on the investigation HCID has conducted against Defendant (Id. at ¶ 10 and Exhibit K); and (7) Defendant has withheld a significant number of responsive documents, as evidenced by Plaintiffs  have conducted initial third-party discovery in this matter, and have discovered significantly more documents in third-party discovery than Defendant has provided, most of which are certainly within Defendant’s possession because Defendant actually provided copies of these documents to third parties. (Id. at ¶ 11 and Exhibit L.)

Anderson further declares that: (1) in addition to Defendant’s duplicitous conduct, Defendant also appears to be willfully flaunting her refusing to comply with discovery in this case such as her merely scanning the first page of multi-page documents of which she has a hard copy and deciding what she wanted to produce and refused to produce subsequent pages of the document (Id. at ¶ 12); (2) Defendant has refused to produce numerous responsive documents such as attachments to e-mails and photos of the property at issue (Id. at ¶ 13); (3) on August 19, 2019, Plaintiffs’ counsel filed a motion to compel further responses to Plaintiffs’ demand for inspection and copy of documents and to seek sanctions, and served it on Defendant (Id. at ¶ 14); (4) the Court held a hearing on Plaintiffs’ motion to compel and entered an order compelling Defendant to further respond to discovery by October 14, 2019 (Id.); (5) on September 14, 2019, he provided notice to Defendant that the motion to compel had been granted and that she was ordered to provide further discovery responses (Id. at ¶ 15 and Exhibit M); (6) Defendant never provided any supplemental discovery responses (Id. at ¶ 16); and (7) on September 19, 2019, after various attempts to meet and confer regarding Defendant’s deposition, he noticed Defendant’s deposition for Friday September 27, 2019. (Id. at ¶ 17 and Exhibit N.)

Anderson additionally declares that: (1) on Thursday, September 26, Esquire Deposition telephoned his office to advise him that there would be no court reporter available to cover the deposition on Friday, September 27 (Id. at ¶ 18); (2) after spending Thursday looking for a substitute court reporter, and finding none, he called Defendant to inform her that her deposition would need to be rescheduled (Id.); (3) Defendant responded that she would not participate in any rescheduled deposition and would not be participating in this case in any way until it came before the Court for trial (Id.); (4) he subsequently sent an e-mail to Defendant asking for a date when she would be available to which she responded “I will not be in Los Angeles again until February, so you may take my deposition then.” (Id. at ¶ 19 and Exhibit O); (5) on November 18, 2019, he provided notice to Defendant that an informal discovery conference was scheduled for December 17, 2019 and she informed him that she would not make herself available that day but wanted to reschedule for December 31, 2019 (Id. at ¶ 20 and Exhibit P); (6) he requested that the Court reschedule to suit Defendant’s preference, however, the Court was unable to do so (Id. at ¶ 20); (7) on December 17, 2019, he appeared for the informal discovery conference but Defendant did not attend (Id. at ¶ 21) and (8) to date, Defendant has not communicated to Plaintiffs any intent to comply with the Court’s September 13, 2019 order or to avail for her deposition prior to the month of trial.  (Id. at ¶ 22.)

Defendant’s Evidence in Opposition to Plaintiffs’ Motion

In her declaration, Defendant declares that: (1) she is pro per in this action and has been so from the beginning (Kim Decl. at ¶ 2); (2) she has never attended law school and has no training in any aspect of the legal field and she has never had the funds to hire any attorney for this action (Id.); (3) she does not understand the causes of action and the ramifications of losing this action to the three Plaintiffs and this is the first time she has been involved in a legal proceeding filed in a court except for a UD complaint (Id. at ¶ 3); (4) she understands the motion to compel was granted and that she is under the obligation to provide the pertinent documents thereto (Id. at ¶ 4); (5) she could not attend the motion hearing because she was in Korea vising her mother who has terminal cancer (Id.); (6) she called the Court from Korea on September 2, 2019 in regards to some discovery conference for purposes of continuing it but it appears the motion went forward (Id.); (7) she returned to the United States on December 30, 2019 after having left on July 1, 2019 (Id.); (8) she does not know the exact numbers that were in issue for the prior motion to compel further responses but before the motion to compel, she believes she produced about 30% of what Plaintiffs asked for before departing for Korea (Id. at ¶ 5); (9) before this motion is heard, she will deliver all the documents stated in her verified further responses to opposing counsel (Id. at ¶¶ 7-8 and Exhibits A and B); and (10) she requests that the Court not sanction her in any way as she is under difficult personal circumstances and has done her best despite not having any attorney representing her throughout this litigation.  (Id. at ¶ 9.)

In her further declaration, Defendant declares that she delivered all documents responsive to Plaintiffs’ request for production of documents, set one, 1 to 67, without objections to Plaintiffs’ attorney, Tyler Anderson.  (Kim Further Decl. at ¶ 2 and Exhibit A.)

In her second further declaration, Defendant declares that: (1) she offered a date to meet and confer and it happened via phone on May 10, 2019 and May 14, 2019 (Kim Second Further Decl. at ¶ 3); (2) she offered many dates for deposition (Id. at ¶ 4 and Exhibit A); (3) she did not respond to Plaintiffs’ counsel’s request for additional deposition dates due to the shortage of court reporters because she did not believe him (Id.); (4) she had heard that court reporters were available even on one day’s notice (Id.); and (5) she had flown in from Korea taking care of her mother who has terminal cancer and it had cost her a considerable amount of money and time.  (Id.)

Analysis

The Court finds that terminating sanctions are appropriate against Defendant and the Court will strike Defendant’s answer to Plaintiffs’ complaint.  Defendant’s declaration does not set forth any efforts on her behalf to comply with the Court’s discovery order with respect to the order on the motion to compel.  While Defendant asserts that she did provide dates for discovery, while true, she does not provide evidence of her follow-up to Anderson’s request to provide additional deposition dates due to the deposition cancellation.  Defendant clearly defied this Court’s September 13, 2019 order and she in fact admitted in her declaration that she understood her obligation to comply with such order.  Defendant was obligated to provide responsive documents within 30 days of such order and failed to do so.  Discovery was propounded on Defendant a year ago yet she has continually failed to comply with such requests despite a Court order mandating her compliance.  Defendant also does not provide evidence or argument to dispute the point that she indicated that she would not participate in this case until it came to the Court for trial.  Plaintiff willfully disobeyed this Court’s September 13, 2019 discovery order under the language set forth in Los Defensores. Under Biles, Defendant clearly defied an order of this Court by not timely complying and such non-compliance was willful. Moreover, under Doppes, Plaintiffs clearly have been prejudiced by not receiving discovery until a month before trial. Therefore, based on the totality of the circumstances, the Court finds a basis to impose terminating sanctions against Defendant.

The Court GRANTS Plaintiffs’ motion to impose terminating sanctions against Defendant and strikes Defendant’s answer to Plaintiffs’ complaint.

Moving parties are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

         Dated this 4th day of February 2020