Lawzilla Additional Information:
Below is the court’s tentative ruling. From online court records it appears the judge continued the hearing to June 1, 2018. The hearing may have been continued to June 14th and a new tentative ruling was issued.

Case Number: BC570149 Hearing Date: May 08, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR TERMINATING SANCTIONS AND MONETARY SANCTIONS; MOTION GRANTED

On January 23, 2015, Plaintiff Alfonso Florentino (“Plaintiff”) filed this action against Defendant Nelson Ariel Sazo (“Defendant”) for negligence arising out of a June 27, 2013 automobile accident. On May 17, 2016, Defendant served written discovery requests on Plaintiff, but Plaintiff served no responses. (Declaration of Sheryl Lee Reeves, ¶¶ 2, 3.) On October 12, 2016, the Court granted Defendant’s motions to compel Plaintiff’s responses to discovery and Plaintiff was ordered to serve verified responses without objections within ten (10) days. (Reeves Decl., ¶ 4.)

On November 8, 2016, Plaintiff failed to appear for trial and the Court dismissed the action. Defendant served a Notice of Ruling and Plaintiff then served unverified and untimely responses to discovery. (Reeves Decl., ¶ 7.) On May 5, 2017, the Court granted Plaintiff’s Motion to set aside dismissal. After the case was reinstated, Defendant sent a meet and confer letter to Plaintiff regarding the unverified discovery responses but received no response. (Reeves Decl., ¶ 8.)

On August 8, 2017, the case was again dismissed for Plaintiff’s failure to appear on the trial date. Thereafter, Plaintiff served verifications for discovery responses and the monetary sanctions previously ordered to be paid. On March 14, 2018, the Court again granted Plaintiff’s Motion to set aside dismissal. To date, Plaintiff has not paid the $400.00 sanction ordered to be paid to Defendant for reinstatement sanctions. (Reeves Decl., ¶ 11.)

On March 20, 2018, Defendant served a Notice of Taking of Plaintiff’s Deposition, scheduling Plaintiff’s deposition for April 4, 2018. (Reeves Decl., ¶ 12.) Plaintiff failed to appear for his deposition and has not returned defense counsel’s requests to reschedule. (Reeves Decl., ¶¶ 16, 19.) Defendant seeks terminating sanctions and monetary sanctions.

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 of 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 an issue, evidence, or terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code of 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 of Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code of Civ. Proc., § 2023.030, subd. (d)(3).) 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. (Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party on whom the interrogatories were served has the burden of showing that the failure to respond was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

Plaintiff filed no opposition to this Motion for sanctions and has presented no evidence showing his pattern of noncompliance and failure to prosecute this action has been anything but willful. There is evidence that lesser sanctions will not compel compliance with discovery rules, based on Plaintiff’s failure to comply with the Court’s October 12, 2016 Order to serve discovery and pay monetary sanctions, failure to pay monetary sanctions for reinstatement after dismissal and failure to appear at a duly notice deposition. Accordingly, defendant’s Motion for Terminating Sanctions is GRANTED. Plaintiff’s complaint is dismissed with prejudice.

Monetary sanctions will not be granted since terminating sanctions are imposed.

Moving party to give notice.