Case Number: BC719816 Hearing Date: March 02, 2020 Dept: 27

[TENTATIVE] ORDER RE: MOTION TO DISMISS PLAINTIFF’S ACTION

On September 24, 2018, plaintiff Davit Karapetyan (“Plaintiff”) filed this action against defendant Mackenzie Busch (“Defendant”) arising from a May 10, 2017 motor vehicle accident. On May 7, 2019, Defendant propounded form interrogatories, special interrogatories, and document requests. Plaintiff did not provide responses, and Defendant moved for an order compelling these responses. Plaintiff filed no opposition to the motions to compel and did not appear at the hearing. On December 9, 2019, the Court granted Defendant’s motions and ordered Plaintiff to serve verified responses without objections within twenty days, and to pay monetary sanctions in the amount of $611.25. Defendant served a notice of ruling on Plaintiff on December 9, 2019.

Plaintiff did not serve the responses or pay the monetary sanctions as ordered. Defendant moves for terminating sanctions. Plaintiff did not file an opposition.

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 the original motions to compel or this motion. Plaintiff did not appear at the hearing on the motions to compel. Plaintiff failed to served responses to discovery as ordered. Defendant served Plaintiff with a notice of the ruling. Given Plaintiff’s apparent disinterest in litigating this case, failure to respond to discovery, and failure to comply with the order after receiving notice of the ruling, the Court finds that Plaintiff understood his obligations to answer discovery, had the ability to comply, and willfully failed to comply. Given that the earlier monetary sanctions had no effect on Plaintiff’s willingness to respond to discovery, the Court finds that lesser sanctions will not curb the abuse.

Accordingly, the 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.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.