ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ANDRÉ BIROTTE, JR., District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that: (1) the Answer of Defendant Los Angeles Sheriff's Department and the Answer of Defendant County of Los Angeles are stricken; and (2) default is entered against Defendant Los Angeles Sheriff's Department and against Defendant County of Los Angeles.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Magistrate Judge's Report and Recommendation on all counsel of record.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

This Report and Recommendation is submitted to the Honorable André Birotte Jr., United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Three times, the Magistrate Judge has ordered Defendant Los Angeles Sheriff's Department and Defendant County of Los Angeles ("Defendants") to produce certain documents to Plaintiff in discovery. Without legitimate excuse, Defendants have violated all three orders and have failed to produce the subject documents.

Three times, the Magistrate Judge has ordered Defendants to pay monetary sanctions to Plaintiff for Defendants' continuing discovery abuse. In addition, on February 15, 2019, the Magistrate Judge ordered that Defendants pay a per diem sanction to the Court each day after February 19, 2019, during which the subject documents remained unproduced. Nevertheless, Defendants failed timely to produce the documents and failed timely to pay any of the per diem sanctions.

Three times, the Magistrate Judge has expressly warned Defendants that failure timely to produce the documents might result in terminating sanctions. Three times, Defendants have failed to heed these warnings. Terminating sanctions may or may not have been appropriate previously, but such sanctions assuredly are appropriate now.

FACTUAL FINDINGS

In this civil rights action brought pursuant to 42 U.S.C. section 1983, Plaintiff contends that a Los Angeles Sheriff's Deputy utilized excessive force in fatally shooting her son. In addition to claims against the individual deputies assertedly involved with the shooting, Plaintiff alleges a Monell1 claim against Defendants (First Amended Complaint, filed February 26, 2018). Plaintiff alleges, inter alia, that Defendants' "failure to train and/or supervise amounts to a de facto custom, practice or policy of [Defendants] allowing deputies to use excessive force" (First Amended Complaint at ¶ 24).

On or about January 16, 2018, Plaintiff served Requests for Production (Set Two) on Defendants (Declaration of Alexandra S. Kelley, filed May 23, 2018, at ¶ 6-7). These requests included a Request No. 18, which demanded "[a]ll documents relating to the `Brady list,' described in an article published by the Los Angeles Times on December 8, 2017, titled `Inside a Secret 2014 List of Hundreds of L.A. Deputies with Histories of Misconduct,' attached hereto as Exhibit A" (Exhibits E and F to the Declaration of Alexandra S. Kelley, filed May 23, 2018).

After Defendants objected to Request No. 18, counsel for Plaintiff initiated a Local Rule 37 discovery motion procedure (Declaration of Alexandra S. Kelley, filed May 23, 2018, at ¶ 13). Counsel for Defendants failed to cooperate in this procedure (id. at §§ 13-19). Specifically, counsel for Defendants failed to respond to correspondence from Plaintiff's counsel, failed timely to meet and confer, and failed to provide Defendants' portion of a Local Rule 37 joint stipulation (id.).

On May 23, 2018, Plaintiff filed a unilateral motion to compel seeking, inter alia, an order compelling the production of all documents responsive to Request No. 18. Defendants failed to file any opposition to Plaintiff's motion.

On June 22, 2018, the Magistrate Judge granted Plaintiff's motion in part, ordering, inter alia, that Defendants produce all documents responsive to Request No. 18 no later than fourteen (14) days after June 22, 2018. The Magistrate Judge awarded Plaintiffs $9,405.00 as sanctions under Rule 37 of the Federal Rules of Civil Procedure and Local Rule 37-4. The Magistrate Judge's order expressly warned Defendants that "[f]ailure timely to comply with this Order may result in the imposition of more drastic sanctions, including without limitation the striking of Defendants' Answer and the entry of Defendants' default."

In an ex parte application, Defendants represented to the Court that an additional two weeks were necessary "to ensure complete compliance with this Court's Order" (Declaration of Douglas L. Day, filed July 9, 2018, at ¶ 16). The Magistrate Judge extended the deadline for compliance with the June 22, 2018 Order until July 23, 2018. However, this July 23, 2018 deadline came and went without the production of any documents responsive to Request No. 18.

On October 12, 2018, Plaintiff filed a motion for evidentiary and monetary sanctions based on Defendants' violation of the June 22, 2018 order. In opposition to this motion, Defendants stated that "the documents responsive to Request No. 18 . . . have taken longer than anticipated to be produced" (Joint Stipulation, filed October 12, 2018, at p. 6).

On November 16, 2018, the Magistrate Judge ordered that Defendants fully comply with the June 22, 2018 Order within fourteen (14) days of November 16, 2018. The Magistrate Judge also ordered that Defendants pay $7,695.00 to Plaintiff as sanctions under Rule 37 of the Federal Rules of Civil Procedure. The Magistrate Judge again warned Defendants that "[f]ailure timely to comply fully with this Order may result in the imposition of more drastic sanctions including, without limitation, the striking of Defendants' Answer and the entry of Defendants' default."

After waiting two more weeks, Defendants filed an ex parte application on November 30, 2018, seeking another two-week extension "to complete its production of responsive documents" ("Ex Parte Application, etc.," filed November 30, 2018 at p.2). The Magistrate Judge denied this application on December 7, 2018. Nevertheless, Defendants thereafter produced no documents responsive to Request No. 18, in continuing violation of the June 22, 2018 Order and the November 16, 2018 Order.

On January 25, 2019, Plaintiff filed another motion for evidentiary and monetary sanctions against Defendants for failure to comply with the Magistrate Judge's discovery orders. This time, Defendants represented to the Court that they were "merely awaiting receipt from the Sheriff's Department of the documents pertaining to the Brady list in connection with Request for Production No. 18 to produce to Plaintiff" (Joint Stipulation, filed January 25, 2019, at p. 7). Defendants argued that Plaintiff had not then been prejudiced by the delay in the production of documents responsive to Request No. 18. Id.

The Magistrate Judge ruled on the January 25, 2019 motion in a Minute Order, filed February 15, 2019. This Minute Order reads in pertinent part:

Nevertheless, Defendants failed to produce any documents responsive to Request No. 18 before, on or after the February 19, 2019 deadline. Defendants also failed to pay the $500.00 sanction required to have been paid to the Court on February 20, 2019 or any of the $500.00 per diem sanctions required to have been paid from February 21, 2019 through at least July 22, 2019.

On June 21, 2019, Plaintiff filed yet another motion for evidentiary and monetary sanctions against Defendants. This time, Defendants represented that documents responsive to Request No. 18 were in the possession of the Office of the District Attorney for Los Angeles County, another agency of Defendant County of Los Angeles ("Joint Stipulation, etc.," filed June 21, 2019, at p. 8; Declaration of Douglas L. Day, filed June 21, 2019, at ¶ 2).

After a July 19, 2019 hearing, and concurrently with the filing of this Report and Recommendation, the Magistrate Judge ruled by Minute Order on certain aspects of Plaintiff's motion. The present Report and Recommendation addresses the motion's request for non-monetary sanctions. A concurrently filed "Certification and Order to Show Cause Re Contempt" concerns Defendants' failure timely to pay per diem sanctions to the Court.

ANALYSIS AND FURTHER FINDINGS

The pertinent facts essentially speak for themselves. Defendants have engaged in willful, repeated, bad faith discovery abuse. The abuse has included repeated violations of multiple court orders to produce documents over which Defendants admittedly have possession, custody and control. Defendants' discovery abuse has continued despite the imposition of significant monetary sanctions and the issuance of pointed warnings that further abuse could result in more drastic sanctions. There remains no remedy for Defendants' discovery abuse other than terminating sanctions (or evidentiary sanctions that would be tantamount to terminating sanctions). Only these sanctions can remedy the potential prejudice to Plaintiff. Only these sanctions can preserve the integrity of the judicial process.

Rule 37(b)(2) of the Federal Rules of Civil Procedure authorizes the sanctions of striking pleadings and rendering default against parties who disobey discovery orders. To justify the imposition of case-dispositive sanctions, the Court must find that the discovery violations were due to "willfulness, bad faith, or fault of the party." Commodity Futures Trading Commission v. Noble Metals International, Inc., 67 F.3d 766, 770-71 (9th Cir. 1995), cert. denied, 519 U.S. 815 (1996) (citations and internal quotations omitted); see also Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958). Disobedient conduct not outside the control of the litigant is all that is required to demonstrate willfulness, bad faith or fault. Henry v. Gill Industries, Inc., 983 F.2d 943, 948-49 (9th Cir. 1993) (citation and internal quotations omitted).

In evaluating the propriety of sanctions, the Court considers "all incidents of a party's misconduct." Adriana International Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir. 1990), cert. denied, 498 U.S. 1109 (1991) (citation omitted).2 A party generally must bear the consequences of discovery abuses caused by the party's counsel. See, e.g., Hamilton Cooper and Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1431 n.2 (9th Cir. 1990); West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990); Chisum v. National Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981). It has long been established that a trial court properly may impose terminating sanctions "to protect the integrity of its orders." Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th Cir. 1975).

The Ninth Circuit has identified five factors that a court must consider when asked to impose terminating sanctions: (1) the public's interest in the expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to the party seeking terminating sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988). "These factors are not a series of conditions precedent before the judge can do anything, but a way for a district judge to think about what to do." In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation and internal quotations omitted). Consideration of these factors yields the conclusion that this Court should impose terminating sanctions on Defendants.

Factors 1 and 2 obviously militate in favor of terminating sanctions, especially because the discovery cut-off has now passed. Factor 2 weighs particularly heavily because of the congested dockets in the Central District of California. See Hunt v. Sunny Delight Beverages Co., 2019 WL 1873230, at *4 (C.D. Cal. April 9, 2019); Alfaro v. Real Value Properties LLC, 2019 WL 2158902, at *2 (C.D. Cal. Jan. 24, 2019).

As to Factor 3, Defendants' discovery abuse potentially has prejudiced Plaintiff's efforts to prove a policy, pattern or practice of constitutional wrongdoing sufficient to impose Monell liability on Defendants. Documents responsive to Request No. 18 may reveal institutionally tolerated deputy misconduct involving excessive use of force, dishonesty, mistreatment of mentally ill suspects and/or other types of alleged misconduct relevant to Plaintiff's Monell claim. Moreover, timely production of documents responsive to Request No. 18 might have disclosed potentially fruitful avenues of Monell discovery now denied to Plaintiff. Thus, even belated compliance with the Magistrate Judge's orders should not avoid terminating sanctions under the circumstances of this case. See Payne v. Exxon Corp., 121 F.3d 503, 508 (9th Cir. 1997) (finding prejudice where party's belated discovery responses "came only as the discovery period was drawing to a close, or after it had already closed," thus depriving the other party "of any meaningful opportunity to follow up on that information, or to incorporate it into their litigation strategy"); G-K Properties v. Redevelopment Agency, 577 F.2d 645, 647-48 (9th Cir. 1978) (offending parties' "last-minute tender of documents could not cure the problem they had previously created"). Contrary to the frivolous argument Defendants made in opposition to Plaintiff's most recent motion, prejudice warranting terminating sanctions may exist although the offending party has not destroyed the documents ordered to be produced, but has merely refused to produce the documents. See, e.g., Hester v. Vision Airlines, Inc., 687 F.3d 1162 (9th Cir. 2012).

Factor 4, the public policy favoring disposition of cases on the merits, usually weighs against terminating sanctions. However, "a case that is stalled or unreasonably delayed by a party's failure to comply with deadlines and discovery obligations cannot move forward toward resolution on the merits." In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d at 1228.

With respect to Factor 5, the Magistrate Judge repeatedly imposed less drastic sanctions for Defendants' egregious misconduct, without any apparent effect on Defendants. The Magistrate Judge ordered discovery compliance, imposed significant monetary sanctions, and warned of terminating sanctions in the event of further noncompliance. Nevertheless, willful, bad faith noncompliance continued, demonstrating the futility of sanctions less than terminating sanctions. Significantly, in opposition to Plaintiff's most recent motion, Defendant failed to suggest any viable lesser sanction. See Ingenco Holdings, LLC v. Ace American Ins. Co., 921 F.3d 803, 822 (9th Cir. 2019) (upholding de facto terminating sanctions where offending party had failed to suggest any viable lesser sanction and any lesser sanction would have required the reopening of discovery).

CONCLUSION AND RECOMMENDATION

Defendants' repeated, willful, bad faith discovery abuse merits terminating sanctions. After balancing the relevant factors, the Magistrate Judge recommends that the Court issue an order striking Defendants' Answer and entering Defendants' default.3