Case Number: BC589009 Hearing Date: June 04, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Alex Magno,

Plaintiff,

v.

County of Los Angeles, et al.,

Defendant.

Case No.: BC589009

Hearing Date: June 4, 2018

[TENTATIVE] order RE:

defendant’s motions for Terminating Sanctions

Defendant County of Los Angeles (“Defendant”) has filed a motion for terminating sanctions against Plaintiff Alex Magno (“Plaintiff”) for Plaintiff’s failure to obey the Court’s March 8, 2018 Order.

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 March 8, 2018, the Court granted Defendant’s motion to compel responses to the Requests for Production of Documents (set one) and Form Interrogatories (set one). The Court ordered Plaintiff to provide responses within 30 days of notice of the order. The Court did not award any monetary sanctions because Defendant did not request any form of sanctions in its moving papers. On March 9, 2018, Defendant served Plaintiff with notice of the Court’s March 8, 2018 order.

As of the filing of this motion on April 23, 2018, Plaintiff has failed to respond to the Requests for Production of Documents (set one) and Form Interrogatories (set one), as ordered by the Court on March 8, 2018. (Rosenberg Decl. ¶ 8.)

The court agrees that it appears that Plaintiff’s failure to respond to discovery amounts to willful disobedience of the Court’s March 8, 2018 order. Despite failing to appear at the March 8, 2018 hearing, Plaintiff was properly notified of the order. Furthermore, although Plaintiff was properly served with the instant motion, Plaintiff has not opposed it, leading the Court to conclude that Plaintiff has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.)

However, dismissing Plaintiff’s action is a harsh penalty. In Link v. Cater (1998) 60 Cal.App.4th 1315, the court stated that “terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.” (Link v. Cater, 60 Cal.App.4th 1315, 1326 [emphasis added].) Before imposing a terminating sanction, the Court must consider whether a sanction short of dismissal would be more appropriate. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.) Terminating sanctions are only appropriate following the imposition of lesser, ineffective sanctions. No lesser sanctions have yet been imposed for Plaintiff’s failure to respond to discovery.

Defendant argues that lesser sanctions in the form of monetary sanctions “would be ineffective in this case because Plaintiff is indigent.” (Def. Mot., at pg. 4.) Defendant provides no evidence to support this claim, and Defendant provides no authority under which a party’s indigence allows a court to find that lesser sanctions would be ineffective without a demonstrated history of non-payment of monetary sanctions. As such, the Court may not consider Plaintiff’s purported indigence as a factor in deeming lesser sanctions insufficient or ineffective.

Defendant also argues that issue sanctions were already granted by the Court when the Court deemed the requests for admissions admitted at the March 8, 2018 hearing. Defendant’s characterization of this ruling is incorrect. Deeming admissions admitted under CCP § 2033.280 is not a sanction, but merely a statutory consequence of failing to serve responses to requests for admission before a motion to deem admitted is heard. As such, the Court has not previously ordered monetary sanctions against Plaintiff prior to this motion. Defendant’s motion to dismiss Plaintiff’s action is denied as Defendant has failed to demonstrate that less severe sanctions will not produce compliance with discovery rules.

The Court may award monetary sanctions in lieu of terminating sanctions when a party fails to comply with an order compelling response to interrogatories or documents requests. (CCP §§ 2030.290, subd. (c); 2031.320, subd. (c).) If Defendant had properly noticed a request for monetary sanctions in the alternative in its moving papers, the Court would have been inclined to grant such a request for monetary sanctions for Plaintiff’s failure to comply with the March 8, 2018 order. However, the Court is unable to do so because the moving papers do not request alternative monetary sanctions.

Accordingly, Defendant’s motion is denied without prejudice for Defendant to first bring a motion for monetary sanctions. If monetary sanctions do not result in Plaintiff’s compliance with the March 8, 2018 order compelling responses, and if Plaintiff does not comply with the order to pay monetary sanctions, then the Court may set an OSC re dismissal as a terminating sanction based on a proper showing that Plaintiff has not paid the monetary sanctions, and Plaintiff continues not to comply with the March 8, 2018 order compelling responses.

Conclusion and Order

Defendant’s motion for terminating sanctions is denied without prejudice.

All parties should note that the hearing on this motion and all future hearings will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

The moving party is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such within three days.

DATED: June 4, 2018 ___________________________

Elaine Lu

Judge of the Superior Court