Case Number: BC651625 Hearing Date: April 11, 2018 Dept: 93

MOVING PARTY: Defendant West Coast Materials, Inc.

RESPONDING PARTY: None

Motion for an Order Imposing Terminating, Issue, Evidentiary, and Monetary Sanctions

The court considered the moving papers. No opposition or reply was filed.

BACKGROUND

On February 24, 2017, Plaintiff Khoren Faja Moughalian filed this action against Defendants Sergio Becerra, Jr., and West Coast Materials, Inc. for motor vehicle negligence.

On December 4, 2017, the Court granted Defendant West Coast Materials, Inc.’s motion for an order compelling Plaintiff to respond to Defendant’s form interrogatories, special interrogatories, and demand for production of documents, as well as pay monetary sanctions in the amount of $705 for necessitating the discovery motions.

Trial is set for August 24, 2018.

Discussion

Defendant West Coast Materials, Inc. (“Defendant”) requests that the Court impose terminating sanctions, or in the alternative, issue, evidentiary, and monetary sanctions, against Plaintiff Khoren Faja Moughalian (“Plaintiff”). Defendant argues that Plaintiff failed to comply with the court’s order dated December 4, 2017, by not serving responses to Defendant’s discovery requests or paying monetary sanctions.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the Court may impose monetary, issue, evidence, or terminating sanctions. (See Code Civ. Proc., §§ 2023.030 [sanctions generally]; 2025.450, subd. (d) [sanctions re depositions]; 2030.290, subd. (c) [sanctions re interrogatories]; 2031.300, subd. (c) sanctions re requests for production of documents].) Under Code of Civil Procedure section 2023.010, misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.”

Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id. at pp. 1244–1246 [discussing cases]; see also, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617–1622 [terminating sanctions imposed when party repeatedly failed to comply with single discovery order]; Laguna Auto Body v. Farmers Ins. Exch. (1991) 231 Cal.App.3d 481, 491, disapproved on another ground in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4 [terminating sanctions imposed when party violated single discovery order and several discovery statutes].)

In this context, willfulness does not require a wrongful intention. A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.) A “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at pp. 787–788.) The party with the obligation to respond to discovery bears the burden of showing that the failure to respond or comply was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252–253.) A court is not required to impose sanctions in a graduated fashion, but may apply “the ultimate sanction” against a party who has persisted in refusing to comply with discovery obligations. (Deyo, supra, 84 Cal.App.3d at p. 793.) “The unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Scherrer v. Plaza Marina Commercial Corp. (1971) 16 Cal.App.3d 520, 524.)

On December 4, 2017, the Court granted Defendant West Coast Materials, Inc.’s motion for an order compelling Plaintiff to respond to Defendant’s form interrogatories, special interrogatories, and demand for production of documents, as well as pay monetary sanctions in the amount of $705 for necessitating the discovery motions. Responses and payment of sanctions were due on or before December 30, 2017 and January 9, 2018, respectively. To date, Plaintiff has failed to respond to discovery or pay the monetary sanctions as ordered by the Court.

The Court finds that Plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the Court’s December 4, 2017 order to provide discovery. (See Code Civ. Proc., §§ 2023.010, subds. (d), (g); 2023.030.) The Court thus finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against Plaintiff pursuant to Code of Civil Procedure section 2023.030, subdivision (d). The Court therefore orders that this action is dismissed as to Defendant West Coast Materials, Inc. (Code Civ. Proc., § 2023.030 subd. (d)(3).)

Whether Plaintiff complied with the Court’s order to pay monetary sanctions of $705 to Defendant within thirty days is of no significance, as this court has not considered that as a factor. The failure of a party to pay court-ordered sanctions is not an appropriate basis for a terminating sanction. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.) The monetary sanction order can be collected as a money judgment under the Enforcement of Judgments Law. (See Code Civ. Proc., § 680.010.)

Accordingly, the motion is GRANTED.

Defendant West Coast Materials, Inc. is ordered to provide notice of this ruling and to lodge a proposed judgment with the Court.

IT IS SO ORDERED.

DATED: April 11, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court