Case Number: 17K07541 Hearing Date: May 30, 2018 Dept: 94

Defendant Zeyong Lu’s Motion for Terminating Sanctions against Plaintiff Alejandro Delgado is GRANTED. This case is dismissed with prejudice. The trial date and all future court dates in this case are advanced and vacated.

Legal Standard

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), 2031.300(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.) Pursuant to CCP Section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(CCP § 2023.030(d).)

Discussion

Defendant Zeyong Lu (“Defendant”) moves to dismiss Plaintiff Alejandro Delgado’s (“Plaintiff”) action pursuant to CCP section 2023.030(d)(3).

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), 2031.300(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 February 7, 2018, the court ordered Plaintiff to serve responses to form interrogatories, special interrogatories and requests for production of documents served on him by Defendant Zeyong Lu, within 20 days. Plaintiff was further ordered to pay sanctions in the amount of $579.00 within 30 days. To date, Plaintiff has failed to comply with any part of the court’s order. (Motion, Houze-Benson Decl., ¶2.)

The court agrees it appears that this failure by Plaintiff to comply with its February 7, 2018 order amounts to willful disobedience. Although Plaintiff did not appear at the hearing, notice of the order was served on him by mail on February 16, 2018. Furthermore, although Plaintiff was properly served with the instant motion for terminating sanctions, he did not oppose it. Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Plaintiff’s compliance with the court’s orders cannot be achieved through lesser sanctions. Therefore, the motion to dismiss this action is granted.

Moving party to give notice.