Case Number: BC519613 Hearing Date: May 13, 2014 Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

DIANA BEARD-WILLIAMS, )
) Case Number BC 519613
Plaintiff, )
) ORDER AFTER HEARING
v )
) Date of Hearing:
NEW ALBERTSONS, CORP., et al ) May 13, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The motion of Defendant New Albertson’s, Inc. for an order dismissing the case came on for hearing on May 13, 2014. Plaintiff Diana Beard-Williams appeared in propria persona. Defendant New Albertson’s, Inc. appeared through its counsel of record, _____________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion of Defendant New Albertson’s, Inc. for an order dismissing the case is DENIED

SO ORDERED this the _____ day of May, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

DIANA BEARD-WILLIAMS, )
) Case Number BC 519613
Plaintiff, )
) ORDER AFTER HEARING
v )
) Date of Hearing:
NEW ALBERTSONS, CORP., et al ) May 13, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. This is a personal injury case arising out of a slip-and-fall accident from July 2013. Plaintiff filed her Complaint on August 27, 2013, alleging causes of action for negligence, violation of the Americans with Disabilities Act, Breach of covenant of good faith and fair dealing, breach of contract, elder abuse, fraud, and discrimination

2. Discovery promptly ensued.

3. On September 30, 2013, Defendant served Plaintiff with its first sets of form interrogatories and special interrogatories, as well as its first set of requests for production.

4. Due to alleged miscommunications, no responses were served, and Defendant obtained a court order dated February 3, 2014 requiring Plaintiff to respond and comply with Defendant’s discovery request through verified response.

5. On February 6, 2014, Defense Counsel received Plaintiff’s attempt to comply with the discovery requests, including handwritten responses to Defendant’s interrogatories on the forms provided, and no apparent production of documents.

6. Defendant sent Plaintiff a letter on March 10, 2014 in an attempt to meet and confer with Plaintiff, and was contacted on March 11. The parties agreed to extend the time for discovery until March 31, 2014.

7. On March 31, 2014, Defendant received Plaintiff’s additional responses. Defendant also contends that no written response has been served as to its requests for production of documents.

8. On April 7, 2014, Defendant brought the present motion, requesting a dismissal of the case for Plaintiff’. On April 11, 2014, Plaintiff filed her opposition to the motion to dismiss.

9. Discussion – Under CCP §2023.030, the court may impose issue and evidentiary sanctions if it finds a party is misusing the discovery process. There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed, so long as one party’s improper actions necessitate the court’s intervention in a discovery dispute. Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286. An issue sanction which “effectively remove[s] from the jury’s consideration evidence favorable to the offending party’s position, or . . . deem issues in favor of the aggrieved party even though the offending party has strong evidence to the contrary” may still be appropriate in cases of serious discovery violations. NewLife Sciences v. Weinstock (2011) 197 Cal.App.4th 676. In general, “two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . : (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.

10. When seeking sanction beyond simple monetary sanctions for discovery abuses, the moving party has the initial burden of establishing the grounds supporting the request. Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334. Absent a court order compelling a response or further responses, the moving party must show responding party’s failure was wilful. Id. Moreover, the rationale for providing such an exclusionary order is that “a persistent refusal to comply with an order for the production of evidence is tantamount to an admission that the disobedient party really has no meritorious claim.” Biles, supra, 124 Cal.App.4th at 1327, quoting Kahn v. Kahn (1977) 68 Cal.App.3d 372, 382.

11. In particular, “[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 discovery rules, the trial court is justified in imposing the ultimate sanction.” Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80.

12. Defendant seeks terminating sanctions because (1) Plaintiff “continues to refuse to provide any response to the request for production” and (2) Plaintiff has not provided a legally sufficient verified response. Certainly, Plaintiff’s failure to provide a response to requests for document productions is proper grounds for sanction; however, a terminating sanction absent any showing that Plaintiff is willfully defying court orders, and where there does not seem to be any pattern of willful abuse of the discovery process, is too draconian.

13. Cases which have allowed dismissal of a case for discovery abuses include where a party repeatedly refused to respond to discovery request despite the issuance of multiple court orders and monetary sanctions (Mileikowsky, supra, 128 Cal.App.4th at 280); where a party committed actual fraud and destroyed evidence called for in discovery requests (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 498); and where a party flatly refused to obey a court order after obstructing discovery for over a year (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 929. In each of these cases, lesser sanctions were judged, based on the history of discovery, to be insufficient to compel compliance. It is only under such extreme circumstances that a terminating sanction was imposed. The Plaintiff’s conduct thus far does not rise to such egregious conduct that would justify the imposition of such a harsh remedy.

14. Accordingly, Defendant’s motion to dismiss the case is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of May, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE