Case Number: BC667971 Hearing Date: June 04, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Michael Patton,

Plaintiff,

v.

Marco Calletano Guerro, et al.,

Defendant.

Case No.: BC667971

Hearing Date: June 4, 2018

[TENTATIVE] order RE:

defendant’s motion for Terminating Sanctions

Defendant Terminix International Company Limited Partnership (“Defendant”) has filed a motion for terminating sanctions against Plaintiff Michael Patton (“Plaintiff”) for Plaintiff’s failure to obey the Court’s January 19, 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 February 22, 2018, the Court granted Defendant’s motion to compel Plaintiff’s responses to the Requests for Production of Documents (set one) and Form Interrogatories (set one). The Court ordered Plaintiff to provide responses within 20 days of notice of the order. The Court did not issue any monetary sanctions on February 22, 2018 because Defendant did not request sanctions. On February 26, 2018, Defendant served Plaintiff with notice of the Court’s February 22, 2018 order.

As of the filing of this motion on April 9, 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 February 22, 2018. (Tabah Decl. ¶ 3.)

The court agrees it appears that Plaintiff’s failure to respond to discovery amounts to willful disobedience of the Court’s February 22, 2018 order. Despite failing to appear at the February 22, 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. Therefore, Defendant’s motion to dismiss Plaintiff’s action is denied at this time.

Defendant also requests monetary sanctions for Plaintiff’s failure to obey the February 22, 2018 order. The Court may award monetary sanctions in lieu of terminating sanctions when a party fails to comply with an order compelling responses to interrogatories or document requests. (CCP §§ 2030.290, subd. (c); 2031.320, subd. (c).) The Court finds that there are no circumstances substantially justifying Plaintiff’s failure to comply with the Court’s February 22, 2018 order. Monetary sanctions have been properly noticed against Plaintiff. The Court grants sanctions for 3 hours to prepare the motion and appear at the hearing, at $200.00 per hour, plus one $60 filing fee, for a total of $660.00. Plaintiff is ordered to pay monetary sanctions in the amount of $660.00 to Defendant, by and through counsel, within thirty (30) days of notice of this order.

On its own motion, the court sets an OSC re Plaintiff’s non-compliance for August 2, 2018 at 1:30 pm. Plaintiff is ordered to personally appear in Department 5 at the Spring Street Courthouse (312 North Spring Street, L.A., CA 90012) at 1:30 pm on August 2, 2018 and show cause why the complaint should not be dismissed against defendant Terminix International Company Limited Partnership for Plaintiff’s failure to comply with the court’s February 22, 2018 order compelling responses. Plaintiff may obtain a discharge of the OSC by either: (1) filing and serving proof of compliance with the Court’s February 22, 2018 order within thirty (30) days of notice of this order; or (2) appearing at the August 2, 2018 OSC hearing and showing good cause for Plaintiff’s lack of compliance with the court’s February 22, 2018 order. Defense Counsel is ordered to file and serve a declaration no later than ten days prior to the August 2, 2018 OSC hearing; the declaration should set forth whether Defense Counsel has received the verified responses that the Court compelled on February 22, 2018 and whether Defense Counsel has received the monetary sanctions awarded in the instant order. Plaintiff’s failure to appear and show good cause for Plaintiff’s continued lack of compliance with the court’s February 22, 2018 order will result in the court: (1) finding that Plaintiff’s continued non-compliance is willful, (2) and dismissing Plaintiff’s Complaint against Defendant Terminix International Company Limited Partnership, in accordance with CCP sections 2023.010(g) and 2023.030(d)(1).

Conclusion and Order

Defendant’s request for terminating sanctions is denied without prejudice. However, the request for monetary sanctions is granted. Plaintiff is ordered to pay monetary sanctions in the amount of $660.00 to Defendant, by and through counsel, within thirty (30) days of notice of this order.

On its own motion, the court sets an OSC re Plaintiff’s non-compliance for August 2, 2018 at 1:30 pm. Plaintiff is ordered to personally appear in Department 5 at the Spring Street Courthouse (312 North Spring Street, L.A., CA 90012) at 1:30 pm on August 2, 2018 and show cause why the complaint should not be dismissed against defendant Terminix International Company Limited Partnership for Plaintiff’s failure to comply with the court’s February 22, 2018 order compelling responses. Plaintiff may obtain a discharge of the OSC by either: (1) filing and serving proof of compliance with the Court’s February 22, 2018 order within thirty (30) days of notice of this order; or (2) appearing at the August 2, 2018 OSC hearing and showing good cause for Plaintiff’s lack of compliance with the court’s February 22, 2018 order. Defense Counsel is ordered to file and serve a declaration no later than ten days prior to the August 2, 2018 OSC hearing; the declaration should set forth whether Defense Counsel has received the verified responses that the Court compelled on February 22, 2018 and whether Defense Counsel has received the monetary sanctions awarded in the instant order. Plaintiff’s failure to appear and show good cause for Plaintiff’s continued lack of compliance with the court’s February 22, 2018 order will result in the court: (1) finding that Plaintiff’s continued non-compliance is willful, (2) and dismissing Plaintiff’s Complaint against Defendant Terminix International Company Limited Partnership, in accordance with CCP sections 2023.010(g) and 2023.030(d)(1).

All parties should note 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 five court days.

DATED: June 4, 2018 ___________________________

Elaine Lu

Judge of the Superior Court