Case Number: BC695086 Hearing Date: June 11, 2019 Dept: 4A

Motion for Terminating Sanctions

Having considered the moving papers and the supplemental declaration filed by Defendant Soriano on May 28, 2019, the Court rules as follows. No opposition was filed.

BACKGROUND

On February 22, 2018, Plaintiffs Nikoles Galan and Francis Pena (“Plaintiffs”) filed a complaint against Defendant Norberto Farias Soriano (“Defendant”) alleging motor vehicle and general negligence arising from an automobile collision that occurred on February 27, 2016.

On February 13, 2019, the Court ordered Plaintiffs to serve on Defendant verified responses, without objections, to Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents and Things (All Set One) within 20 days. The Court also ordered Plaintiffs to produce all documents and things in Plaintiffs’ possession, custody, or control, which are responsive to Defendant’s request for production within 20 days. In addition, the Court ordered Plaintiffs to pay Defendant $680.00 in monetary sanctions within 30 days.

On March 11, 2019, Defendant filed a motion for an order imposing terminating sanctions dismissing Plaintiffs’ complaint for Plaintiffs’ failure to comply with the Court’s February 13, 2019 order.

On May 21, 2019, the Court continued the hearing on Defendant’s motion for terminating sanctions for Defendant to file a supplemental declaration by May 28, 2019 evidencing Plaintiffs’ failure to comply with the February 13, 2019 order. A reply was due by June 4, 2019.

On May 28, 2019, Defendant filed a supplemental declaration. No reply was filed by Plaintiffs.

Trial is set for August 22, 2019.

PARTY’S REQUEST

Defendant requests that this Court grant terminating sanctions by dismissing Plaintiffs’ complaint because of their failure to follow the Court’s February 13, 2019 order, pursuant to California Code of Civil Procedure sections 2023.030, subdivision (c), 2030.290, subdivision (c), and 2031.300, subdivision (c).

LEGAL STANDARD

If a party fails to comply with a court order compelling a response to interrogatories or a request for production, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).) California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

“The trial court may order a terminating 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.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Ibid. (citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 (disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

ANALYSIS

On February 13, 2019, the Court ordered Plaintiffs to serve on Defendant verified responses, without objections, to Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents and Things (All Set One) within 20 days. The Court also ordered Plaintiffs to produce all documents and things in Plaintiffs’ possession, custody, or control, which are responsive to Defendant’s request for production within 20 days. The Court further ordered Plaintiffs to pay Defendant $680.00 in monetary sanctions within 30 days. On February 14, 2019, Defendant filed and served a notice of the Court’s February 13, 2019 on Plaintiffs by U.S. mail. (Initial Feldman Decl., ¶ 4, Exh. A.)

Whether Plaintiffs complied with the Court’s order to pay monetary sanctions is irrelevant to the court’s determination as to whether terminating sanctions¿should be imposed, because a court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿(See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)

Defendant’s counsel declares that Plaintiffs failed to serve verified responses, without objections prior to March 11, 2019. (Supp. Feldman Decl., ¶ 5.) On May 22, 2019 and on May 23, 2019, Defendant’s counsel told Plaintiffs’ counsel that the outstanding verified discovery answers were due by May 28, 2019 at 12:00 p.m. (Supp. Feldman Decl., ¶¶ 9-10, Exh. A-B.) As of the time that Daniel Feldman signed his declaration on May 28, 2019, Plaintiffs had still not received the outstanding discovery responses. (Supp. Feldman Decl., ¶ 12.) Further, although it is clear from defense counsel’s declaration that Plaintiffs’ attorney is aware of his clients’ obligation to serve discovery answers pursuant to this Court’s order and the hearing on Defendant’s motion for terminating sanctions, Plaintiffs have still submitted no opposition, declaration or other filing for the Court’s consideration.

The Court finds that Plaintiffs have engaged in conduct that is a misuse of the discovery process by disobeying the Court’s February 13, 2019 order to serve verified discovery responses without objections. (Code of Civ. Proc. §§ 2023.010, subd. (g); 2023.030.) Further, although the Court provided Plaintiffs with additional opportunities to respond to the outstanding discovery and to submit a brief or declaration explaining their dereliction in this ligation, Plaintiffs have failed to avail themselves of these opportunities. Thus, the Court finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against Plaintiffs pursuant to California Code of Civil Procedure section 2023.030, subd. (d).)

The motion is GRANTED.

The Court strikes Plaintiffs’ complaint and dismisses this action in its entirety.

Defendant is ordered to give notice of this ruling.