Case Number: 19STCV02014 Hearing Date: December 19, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS

On January 19, 2019, plaintiff Anthony Jenkins filed this action against defendants The Salvation Army and Anthony Michael Reyes, Jr. (collectively, “Defendants”) relating to a motor vehicle accident. On May 1, 2019, Defendants propounded form interrogatories and document requests. Plaintiff did not provide responses. Defendants moved to compel, and Plaintiff did not oppose the motion. On September 27, 2019, the Court ordered Plaintiff to provide responses and pay sanctions within 20 days of service of notice. Defendants served a notice of ruling on October 1, 2019, but Plaintiff has not served responses or paid the sanctions. Defendants move to dismiss the case.

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.)

Plaintiff filed no opposition to this Motion, did not served responses to discovery, failed to pay monetary sanctions, and disobeyed an order to do so. Defendants served a notice of ruling on Plaintiff. Therefore, the Court concludes Plaintiff knew of his discovery obligations and of the order compelling his compliance. Given Plaintiff’s prior failure to comply with discovery obligations and apparent disinterest in prosecuting this action, the Court finds Plaintiff’s non-compliance is willful and lesser sanctions would not curb the abuse.

Accordingly, Defendants’ Motion for terminating sanctions is GRANTED and Plaintiff’s action is hereby dismissed. As the Court is granting terminating sanctions it declines to also impose monetary sanctions.

Moving party to give notice.