Case Number: 23STCV03450 Hearing Date: September 18, 2024 Dept: 68
Dept. 68
Date: 9-18-24
Case Number: 23STCV03450
Trial Date: 4-28-25 c/f 11-25-24
TERMINATING SANCTIONS
MOVING PARTY: Plaintiff, APB Properties, Inc.
RESPONDING PARTY: Defendant, Jeff Kern
RELIEF REQUESTED
Motion for Terminating Sanctions
SUMMARY OF ACTION
On March 11, 2022,, Defendant Jeff Kern, et al. entered into an agreement with Plaintiff APB Properties, Inc. for the purchase of certain commercial property located at 6342 Pacific Bl., Huntington Park. The purchase price was $2,050,000, with a 90-day escrow period. Kern deposited $60,000. Subsequent negotiations based on requests for repair led to a reduction in price, with escrow closing date remaining May 31, 2022. Plaintiff buyer failed to follow through on the purchase. APB Properties, Inc. seeks the $60,000 deposit as liquidated damages.
On February 16, 2023, Plaintiff filed a complaint for Breach of Written Contract and Declaratory Relief. Kern filed a cross-complaint for Breach of Contract of Contract and Declaratory Relief on April 13, 2024, with the answer filed on April 14, 2023. Kern alleges APB Properties, Inc. withheld material information on the condition of the property, thereby breaching the purchase contract.
On May 19, 2023, the court granted the motion to compel arbitration. On December 27, 2023, the court terminated the arbitration order and lifted the stay. APB Properties, Inc. answered the cross-complaint on December 28, 2023.
RULING: Granted.
Plaintiff APB Properties, Inc. (APB) moves for terminating sanctions against Defendant Jeff Kern, due to the failure to comply with the June 3, 2024, order compelling responses to the Request for Production of Documents (set one). The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.
“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.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326; Department of Forestry & Fire Protection v. Howell¿(2017) 18 Cal.App.5th 154, 191 [“Terminating sanctions are to be used sparingly because of the drastic effect of their application.”].) “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.)
A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “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.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)
“The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.’ (Citation.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure (Citations), 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 & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)
The motion makes an alternative conclusive request for sanctions barring Kern from “introducing any documents that were requested in the document request.” Normally, the court initially considers issue and evidentiary sanctions, but where a party presents no opposition and appears to have abandoned the case, the court can impose terminating sanctions.
The court also notes that the underlying motion only addressed discovery served by Defendant to Plaintiff. The court therefore can only strike the answer to the complaint, and declines to strike the cross-complaint. The motion for terminating sanctions is therefore granted as to the complaint in the form of an order striking the answer. Plaintiff may proceed with a default, and return to the court for a default judgment.
Sanctions in the amount of $1,000. (Code Civ. Proc., §§ 2023.040, 2023.050, subd. (a), 2031.310, subd. (i).) Sanctions payable in 30 days and imposed jointly against responding party and counsel.
Motions for summary judgment/summary adjudication and motion for terminating sanctions, and motion to set aside admissions for October 21, 2024, are vacated.
Trial on the cross-complaint remains set for April 28, 2025.
Plaintiff APB to give notice.