2017-00205803-CL-AF

In Re: Octavio Lezama

Nature of Proceeding: Motion to Strike

Filed By: Miller, Lauren E.

Petitioner’s Motion for Order Striking Claim opposing forfeiture is UNOPPOSED and is GRANTED.

Real party in interest failed to obey the Court order of December 5, 2017, requiring discovery responses on or before January 2, 2018. Petitioner served a copy of that minute order to real party in interest Lezama. No responses were served. The Court finds real party in interest’s failure to abide by his discovery obligations and the Court order is willful, justifying a terminating sanction.

Although no California cases have been decided on this point, in a related federal case, forfeiture for failure to comply with discovery orders was upheld, as it is presumed that dismissal is not an abuse of discretion if the party has the ability to comply with a discovery order but does not. (United States v. Reyes (6th Cir. 2002) 307 F.3d 451, 455.) Federal cases may properly be cited as persuasive, although not binding, authority. Moreover, federal case law is instructive in the area of forfeiture because the California forfeiture statute is patterned after the federal drug forfeiture statute. (Cf. Health & Safety Code, § 11470 et seq. with 21 U.S.C. § 881.) Thus, as noted above, real party in interest’s failure to respond to discovery and failure to comply with the Court’s order constitutes misuse of the discovery process. (Code Civ. Proc. § 2023.010(d),(g).) Bolstering this conclusion, it is to be observed that Health & Safety Code section 11488.4(c)(3) provides that “[T]he provisions of the Code of Civil Procedure shall apply to proceedings under this chapter unless otherwise inconsistent with the provisions or procedures set forth in this chapter.” (See, also Jauregi v. Superior Court (1999) 72 Cal. App. 4th 931, 938.) Pretrial discovery according to standard civil procedure is available. (People v. 25651 Minoa Drive (1992) 2 Cal. App. 4th 787.) It would be absurd for the Legislature to have mandated the discovery provisions of the Code of Civil Procedure apply to such actions, yet not import the sanctions for failure to comply. (See, e.g. Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal. 4th 554.) In ordering terminating sanctions or not, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances.

The claim opposing forfeiture is stricken. However, no judgment can be entered at this time because a judgment for forfeiture cannot be entered by default. Health and Safety Code section 11488.5 (b)(1) provides that “If at the end of the time set forth in subdivision (a) there is no claim on file, the court, upon motion, shall declare the property seized or subject to forfeiture pursuant to subdivisions (a) to (g), inclusive, of Section 11470 forfeited to the state. In moving for a default judgment pursuant to this subdivision, the state or local governmental entity shall be required to establish a prima facie case in support of its petition for forfeiture.”

Petitioner is required to prove up the petition in the same manner as if no claim was ever filed. Petitioner may submit a default package to the default unit to obtain a default judgment.