Case Number: BC685253 Hearing Date: June 21, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS

On November 29, 2017, Plaintiff Melissa Gursey (“Plaintiff”) filed this action against Defendants Gabriel Jahleel Parker and Gregory Parker (collectively, “Defendants”) for general negligence and motor vehicle negligence arising out of a March 8, 2016 motor vehicle accident. On January 8, 2019, the parties participated in an Informal Discovery Conference (IDC) regarding written discovery requests and defendant’s deposition. The parties’ counsel reached an agreement that Defendant would produce additional documents and to serve supplemental responses to form interrogatories. Defendant failed to produce the agreed-upon documents and supplemental responses.

On January 11, 2019, the Court granted Plaintiff’s motion to compel Defendant’s deposition, ordered Defendant to appear for a deposition within sixty days, and ordered Defendant to pay monetary sanctions. On March 5, 2019, the Court granted Plaintiff’s motion to compel further responses to form interrogatories and document requests, ordered Defendant to produce documents and further responses, and ordered Defendant to pay monetary sanctions. Defendant was ordered to provide responses and pay sanctions within ten (10) days. Defendant has not complied with these orders. Therefore, Plaintiff seeks terminating sanctions or alternatively, an order directing Defendant’s compliance and a six-month trial continuance to complete discovery.

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.)

Defense counsel states he has been unable to locate Defendant for months. (Declaration of James H. Goldman, ¶ 3.) Defense counsel argues: (1) Defendant is unaware of the outstanding discovery and therefore he has not willfully refused to participate and terminating sanctions are not warranted; (2) Defendant’s participation in discovery is not pertinent and does not interfere with the court’s mission of “seeking truth and justice” since Plaintiff’s action can be litigated without deposing Defendant or obtaining his verified responses to written discovery; (3) monetary sanctions are not warranted because Plaintiff’s counsel knew defense counsel could not contact Defendant and chose to incur the costs/fees associated with filing these motions; and (4) Defendant’s insurance carrier should be afforded the opportunity to intervene in this matter, as they are the real party in interest who would be required to pay out any judgment against Defendant.

Plaintiff requests the Court strike Defendant’s answer and enter a default judgment against him. Before a defendant’s answer can be stricken and a default entered as a discovery sanction, the plaintiff must serve a statement of damages pursuant to Code of Civil Procedure section 425.11. (Van Sickle v. Gilbert (2011 196 Cal.App.4th 1495, 1521.) Plaintiff did not show she served a statement of damages.

Defense counsel contends his client does not know about the discovery orders because he has been unable to locate him. Plaintiff provides no evidence to the contrary. Plaintiff did not cite any cases holding that when a party is not aware of discovery orders, terminating sanctions may nonetheless be proper. The Court cannot find that Defendant is willfully failing to obey an order of which he is unaware, and for that reason cannot strike the answer and enter a default judgment.

Plaintiff asks in the alternative for an order that Defendant comply with the prior discovery orders. The Court previously issued orders that Defendant produce discovery. Those orders remain outstanding and do not have an expiration date. Therefore, there is no need for an additional order that Defendant comply with the already-outstanding orders.

Plaintiff also asks for a six-month continuance of the trial but did not show why the continuance is necessary or how continuing the trial will lead to Defendant complying with the outstanding discovery orders. If Defendant does not appear for trial, Plaintiff should be prepared to proceed to trial without Defendant, including by having all pre-trial documents (exhibit list, witness list, jury instructions, etc.) prepared and filed even if they cannot be joint documents given Defendant’s absence. If Defendant does appear at the last minute for trial, Plaintiff can be prepared for that contingency, for instance, by filing the appropriate trial motions concerning Defendant’s failure to provide the ordered discovery and comply with Court orders.

If Defendant’s insurer wants to intervene, it must make a motion for leave to intervene.

For these reasons, the motion for terminating sanctions is DENIED.

Plaintiff requested monetary sanctions of $7,210 against both Defendant and defense counsel. The request for monetary sanctions is DENIED because Plaintiff did not establish the basis for terminating sanctions or the need for the Court to reiterate the already-outstanding orders.

Moving party to give notice.