Case Number: BC651217 Hearing Date: May 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR TERMINATING SANCTIONS

On February 21, 2017, Plaintiffs Erin Sacco and Ernest Sacco (collectively, “Plaintiffs”) filed this action against Defendant Leslie A. Peterson (“Defendant”) for injuries sustained in a February 22, 2015 motor vehicle accident. Defendant moves for terminating sanctions.

Plaintiffs failed to respond to Defendant’s written discovery requests. On November 8, 2018, the Court denied a motion for terminating sanction but ordered Plaintiffs to respond to Defendant’s written discovery requests within 30 days of the Order. Defendant served a Notice of Ruling on Plaintiffs’ counsel’s office. On January 29, 2019, Plaintiffs’ counsel responded that he was in receipt of the Notice of Ruling and Defendant’s discovery requests and would provide Plaintiff’s verified, objection-free responses by February 1, 2019. Despite numerous meet and confer efforts, Defendant has not received any responses from Plaintiffs’ counsel.

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code Civ. Proc., § 2023.030, subd. (d)(3).)

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

Plaintiffs filed no opposition to this Motion, and it is undisputed they failed to serve responses to discovery and disobeyed a Court Order to do so. Defendant served a Notice of Ruling on Plaintiffs’ counsel, who responded and acknowledged Plaintiffs’ discovery obligations. Therefore, the Court concludes Plaintiffs knew of their discovery obligations, knew of the Court Order compelling their compliance, and failed to show their noncompliance was not willful. Given Plaintiffs’ prior failures to comply with discovery obligations and apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse.

Accordingly, Defendant’s Motion for terminating sanctions is GRANTED and Plaintiffs’ action is hereby dismissed.

Moving party to give notice.