Case Number: BC523443 Hearing Date: March 13, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Paul de vore;

Plaintiff,

vs.

david deshay, et al.;

Defendants.

Case No.:

BC 523443

Hearing Date:

March 13, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

INTERVENING DEFENDANT JAMES V. MELLEIN’S MOTION FOR ISSUE, EVIDENTIARY AND TERMINATING SANCTIONS AGAINST DAVID DESHAY AND ORDER RE DEFAULT/DISMISSAL RE REMAINING CROSS-DEFENDANTS

AND RELATED CROSS-ACTIONS

Factual & Procedural Background

Plaintiff Paul DeVore filed the instant action in interpleader on October 4, 2013 against a number of defendants, including David DeShay (“DeShay”) (the “Interpleader Complaint”).

On January 6, 2017, Intervening Defendant James Mellein (“Mellein”) filed the operative First Amended Answer and Cross-Complaint in Intervention (“FACC”).

Mellein served DeShay with various written discovery requests, and when DeShay failed to respond, Mellein moved for orders compelling responses. On October 12, 2017, the Court issued an order compelling DeShay to provide responses to the First Set of Form Interrogatories and the First Set of Special Interrogatories within 30 days of notice of the order. (RFJN, Ex. A.) On January 8, 2018, the Court issued an order compelling DeShay to provide responses to the Second and Third Sets of Special Interrogatories and the First and Second Sets of Demand for Production of Documents within 20 days of notice of the order. (RFJN, Ex. B.) On January 9, 2018, the Court issued an order compelling DeShay to provide responses to the Second Set of Form Interrogatories within 20 days of notice of the order. (RFJN, Ex. C.) Monetary sanctions were also granted in each order. (RFJN, Exs. A-C.)

Mellein served notice of each of the discovery orders. (Mellein Decl., ¶ 5; RFJN, Exs. D-G.) DeShay did not provide any responses to any of the written discovery nor did he pay the monetary sanctions despite Mellein’s multiple communications to DeShay. (Mellein Decl., ¶¶ 5-6, Ex. 8.) Mellein now moves for terminating, evidentiary, issue, and further monetary sanctions against DeShay. No opposition to the motion was filed.

Request for Judicial Notice

Mellein’s Request for Judicial Notice as to Exhibits A through J is granted.

Discussion

Once a motion to compel further responses is granted, continued failure to respond or inadequate responses may result in more severe sanctions. ((See, e.g., Code Civ. Proc., § 2031.310(i).) Disobeying a court order to provide discovery is a misuse of the discovery process. ((Code Civ. Proc., § 2023.010(g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of a terminating sanction. ((Code Civ. Proc., § 2023.030(d).) The Court may impose a terminating sanction by an order striking a pleading, dismissing any part of an action, or rendering a judgment by default. ((Code Civ. Proc., § 2023.030(d).)

“[T]he sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.” ((Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.) “A decision to order terminating sanctions should not be made lightly. But where 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.” ((Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)

Here, the evidence establishes that DeShay repeatedly failed to respond to discovery, thus forcing Mellein to file numerous discovery motions. Moreover, DeShay has failed to comply with multiple court orders regarding discovery despite knowledge of them. In instances where “the record is replete with instances of delay and failure to comply with a court order, dismissal may be proper.” ((Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489 [disapproved on other grounds].) This is particularly true where, as here, DeShay did not file an opposition to the instant motion. (See ibid. [“[A]ppellants had ample opportunity to present their arguments and excuses to the trial court. Instead, they failed to file opposition to the motion to compel or the dismissal motion, leading the trial court and us to presume they had no meritorious arguments.”].)

The Court finds that DeShay’s discovery abuse demonstrates that less severe sanctions will not produce compliance with the discovery rules. Accordingly, terminating sanctions are appropriate.

Conclusion

For the foregoing reasons, Mellein’s motion for terminating sanctions is granted. DeShay’s Answer to the Interpleader Complaint is stricken as to Mellein. DeShay’s Answer to the FACC is stricken. The Court enters default against DeShay on the FACC. The Court does not award any other sanctions requested by Mellein. Within 20 days of this Order, Mellein is ordered to (a) submit a default judgment package with regard to DeShay and David Brown as Trustee of the David J. Brown Revocable Trust whose default was entered on 12/26/17, (b) file new requests for entry of default against the remaining cross-defendants whose defaults were last rejected for lack of a signature in item 6 of the default requests (i.e., Horizon Fund, American Trust Deed Services Corporation, Horizon Equities, Inc., and Horizon Management Inc.), and (c) either dismiss or request the entry of default of David Deshay as Trustee of Glenview Profit Sharing Plan.

Mellein is ordered to provide notice of this Order.

DATED: March 13, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court