Eloisa Ortega et al vs Andrew Loy

Case Number

21CV02118

Case Type

Hearing Date / Time

Fri, 06/21/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For all reasons discussed herein, the motion of defendants to compel compliance with the court’s prior orders, and for issue, evidence, terminating, or monetary sanctions, is denied.

Background:

On May 27, 2021, plaintiffs Eloisa Ortega (Eloisa) and Alfonso Ortega (Alfonso), individually, and on behalf of their minor child, Christianne Ortega (collectively, the Ortegas), filed a complaint alleging two causes of action against defendant Andrew Loy (Loy): (1) negligence; and (2) violation of California Vehicle Code section 21453, subdivision (a). (Note: To avoid confusion due to common familial surnames, the court will refer to plaintiffs by their first names. No disrespect is intended.) In the complaint, plaintiffs allege that on June 11, 2019, Loy failed to stop for a red signal light and the limit line of Shoreline Drive at the intersection of Loma Alta Drive in Santa Barbara, California, causing a collision with a vehicle carrying plaintiffs. (Compl., ¶¶ 1, 7-9.)

Loy filed an answer to plaintiffs’ complaint on February 8, 2022, generally denying its allegations and asserting fourteen affirmative defenses.

On January 5, 2024, Loy filed in this action three separate motions (the January 5 motions) seeking orders compelling plaintiffs to each provide verified responses to supplemental sets of interrogatories (the supplemental SI) and demands for production of documents (the supplemental RFP) served on plaintiffs by Loy on September 13, 2023, and imposing monetary sanctions against plaintiffs. Court records reflect that plaintiffs did not file oppositions to the January 5 motions.

On March 15, 2024, the court issued a Minute Order (the Minute Order) granting the unopposed January 5 motions, ordering plaintiffs to serve verified responses to the supplemental SI and supplemental RFP on or before March 29, 2024, and awarding sanctions in favor of Loy and against plaintiffs in the total amount of $486 to be paid to Loy’s counsel on or before April 15, 2024. (See Minute Order.) On March 18, 2024, Loy filed and served a notice of the court’s ruling as reflected in the Minute Order.

On April 23, 2024, Loy filed a motion for an order compelling plaintiffs to comply with the Minute Order and imposing monetary, issue, evidence, or terminating sanctions, on the grounds that plaintiffs have failed to comply with the Minute Order. In support of the motion, Loy submits the declaration of his counsel, Cindy Hiroto Roberts (Roberts), who states that plaintiffs have not served any responses to the supplemental SI or supplemental RFP and have not paid the sanctions awarded under the Minute Order. (Roberts Decl., ¶¶ 9-10.)

Roberts further declares that on April 16, 2024, she sent an email to counsel for plaintiffs notifying him that plaintiffs had not complied with the Minute Order and that Loy was filing a motion to compel compliance with the Minute Order. (Roberts Decl., ¶ 11.) Roberts also states that she believes Eloisa may have relocated to Colorado and is receiving medical treatment out of state. (Id. at ¶ 12.) In addition, Roberts declares that on March 12 and April 11, 2024, she provided counsel for plaintiffs with a medical release for out of state providers which was never returned. (Ibid.)

Plaintiffs oppose the motion. In support of their opposition, plaintiffs submit the declaration of their counsel, Thomas F. Mortimer, Jr. (Mortimer), who states that plaintiffs reside in Colorado and that as a result, Mortimer has had difficulty obtaining medical records and information regarding a surgery scheduled for Eloisa, among other things. (Mortimer Decl., ¶¶ 3-4.) Mortimer also offers information regarding a protracted trial in another venue and an illness suffered by Mortimer at the end of that trial which, Mortimer contends, demonstrates excusable neglect, mistake, and inadvertence with respect to any failure by plaintiffs to provide timely responses to the supplemental SI and supplemental RFP, to respond to the January 5 motions, or to comply with the Minute Order. (Id. at ¶¶ 4-8.)

Mortimer further states that plaintiffs have provided responses to the supplemental SI and supplemental RFP, and have paid the monetary sanctions imposed in the Minute Order. (Mortimer Decl., ¶¶ 9-19 & Exhs. C-L.)

On June 14, 2024, Roberts filed a reply declaration stating that plaintiffs served responses to the supplemental SI and supplemental RFP on June 7, 2024, but have not provided medical authorizations for out of state records. (Roberts Reply Decl., ¶¶ 5-7.) Roberts further states that the document production by Eloisa is deficient (Id. at ¶ 8.)

Analysis:

Available evidence and information indicates that plaintiffs have served responses to the supplemental SI and supplemental RFP notwithstanding the timeliness of the responses with respect to the deadline stated in the Minute Order or whether the responses are sufficient. The parties also do not appear to dispute that plaintiffs have paid the sanctions awarded in the Minute Order. Under the circumstances present here, the court has discretion to determine what relief, if any, should be granted to Loy, or whether the motion should be denied as unnecessary, taken off calendar, or narrowed to the issue of sanctions. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.)

Considering the totality of the circumstances present here and to preserve judicial efficiency by avoiding piecemeal rulings given that the parties do not dispute that plaintiffs have served responses to the supplemental SI and supplemental RFP and paid the award of sanctions, the court will at this stage of the proceedings deny the motion as moot to the extent plaintiff seeks to compel plaintiffs to comply with the Minute Order. To the extent any disputes regarding the responses of plaintiffs to the supplemental SI or supplemental RFP exist or develop, the court’s ruling herein is without prejudice to the future filing by Loy of any procedurally appropriate motion provided the parties fully meet and confer in good faith.  

With respect to the sanctions requested by Loy, if a party fails to obey an order compelling a response to interrogatories or inspection demands, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction …. In lieu of, or in addition to, that sanction, the court may impose a monetary sanction ….” (Code Civ. Proc., §§ 2030.290, subd. (d); 2031.300, subd. (c).) “The award of discovery sanctions is a matter within the trial court’s discretion” and should be “ ‘ “ ‘appropriate to the dereliction, and … not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ ” ’ ” (Karz v. Karl (1982) 137 Cal.App.3d 637, 648; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)

Available information and evidence reflects that plaintiffs failed to comply with the Minute Order by providing verified responses to the supplemental SI and supplemental RFP on or before March 29, 2024, and to pay sanctions to counsel for Loy on or before April 15, 2024. Though Mortimer asserts that a trial which began on February 26, 2024, prevented him from responding to the January 5 motions, these matters could have been raised at an earlier time. (See, e.g., Code Civ. Proc., §§ 2030.290, subd. (a)(2); 2031.300, subd. (a)(2) [providing that the court may relieve a party from a waiver resulting from that party’s failure to serve a timely response to interrogatories or an inspection demand upon the filing and service of an appropriate motion demonstrating “mistake, inadvertence, or excusable neglect”].)

Moreover, Code of Civil Procedure section 473 permits the court to relieve a party or his or her legal representative “from a[n] …order …taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) The court has no record of plaintiffs or their counsel having filed a procedurally appropriate application for relief from the Minute Order under Code of Civil Procedure section 473, subdivision (b).) Therefore, the court is not presently in a procedurally appropriate position to determine whether plaintiffs may be relieved from the Minute Order based on mistake, inadvertence, or excusable neglect.

Notwithstanding plaintiffs’ failure to comply with the Minute Order, the evidence and information presented by Loy is insufficient to demonstrate that, at this stage of the proceedings, a less severe sanction would not remedy any misuse or abuse of the discovery process by plaintiffs. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 [discovery sanctions “should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery”].) In addition, under the circumstances present here, the court finds that the evidence and issue sanctions requested by Loy are not appropriate or presently warranted also considering that the trial in this matter has been continued to October 4, 2024. (See Jan. 25, 2024, Order.) In addition, sanctions may not be imposed with the intent to deter future violations or as punishment. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 214.) Therefore, for all reasons discussed above, the court will not, at this stage of the proceedings, impose issue, evidence, or terminating sanctions.

Regarding monetary sanctions, which are warranted, the court finds that sanctions in the amount of $914 represents a reasonable award to compensate Loy for attorney’s fees and costs incurred as a result of plaintiffs’ violation of the Minute Order. However, though Loy alternatively requests an award of monetary sanctions and submits the Roberts declaration which sets forth facts supporting the amount of the monetary sanctions sought, neither the notice of the motion nor the memorandum in support of the motion “identify every person, party, and attorney against whom the sanction is sought….” (Code Civ. Proc., § 2023.040.) Therefore, thought the court would otherwise be presently inclined to award monetary sanctions, the court will deny Loy’s request for monetary sanctions on procedural grounds.