Case Number: BC587729 Hearing Date: March 14, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Farmers Insurance Exchange,

Plaintiff,

v.

Hugo Silva Romero, et al.,

Defendants.

Case No.: BC587729

Hearing Date: March 14, 2018

[TENTATIVE] order RE:

Plaintiff’s Motion for Terminating sanctionS

Plaintiff Farmers Insurance Exchange(“Plaintiff”) moves for terminating sanctions against Defendant Hugo Silva Romero (“Defendant”) pursuant to CCP section 2023.030(d)(1). Defendant has not filed an opposition.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

On November 15, 2017, the Court granted Plaintiff’s motion to compel Defendant’s responses to the form interrogatories. No sanctions were awarded to Plaintiff in the order.

As of the filing of this motion, Defendant has failed to comply with the court’s order insofar as Defendant has failed to produce the compelled responses. (Exh 1.) The court agrees it appears that this failure to serve responses amounts to willful disobedience of its order. Despite failing to appear at the November 15, 2017 hearing, Defendant was properly notified of the order. Furthermore, although Defendant was properly served with the instant motion, he did not oppose it. However, striking Defendant’s answer is a harsh penalty. Terminating sanctions are only appropriate following the imposition of lesser, ineffective sanctions. No lesser sanctions have yet been imposed for Defendant’s failure to respond to discovery. In fact, no sanctions were requested or awarded at the last hearing. Therefore, the motion to strike Defendant’s answer is denied.

However, on its own motion, the court sets an OSC re Striking Defendant Hugo Silva Romero’s Answer for Failure to Comply with the Court’s November 15, 2017 Order. The OSC re non-compliance is set for April 11, 2018 at 1:30 pm. Defendant Hugo Silva Romero is ordered to appear in Department 97 of the Stanley Mosk Courthouse on April 11, 2018 at 1:30 pm and show cause why his answer should not be stricken for his lack of compliance with the court’s November 15, 2017 order. Defendant’s failure to appear and show good cause for his lack of compliance with the court’s November 15, 2017 order will result in the court (a) finding that his non-compliance was willful and (b) striking Defendant’s answer, in accordance with CCP sections 2023.010(g) and 2023.030(d).

The Court notes that this OSC re non-compliance is set after the current Trial and FSC dates in this case. Thus, the FSC is continued to April 25, 2018 at 10:00 am. Trial is continued to May 9, 2018 at 8:30 am.

Plaintiff is ordered to provide notice of this order and file proof of service of such within five days.

DATED: March 14, 2018 ___________________________

Elaine Lu

Judge of the Superior Court