Case Number: 18STLC06807 Hearing Date: January 22, 2020 Dept: 26

Kenney v. Flower Buyer, et al.

MOTION FOR TERMINATING AND MONETARY SANCTIONS;

MOTION FOR SUMMARY JUDGMENT / ADJUDICATION

(CCP § 2023.010; CCP § 437c)

TENTATIVE RULING:

Defendant Flower Buyer’s Motion for Terminating and Monetary Sanctions Against Plaintiff Alice Kenney is GRANTED AS TO TERMINATING SANCTIONS AND DENIED AS TO MONETARY SANCTIONS. THE COURT HEREBY DISMISSES THE COMPLAINT WITH PREJUDICE.

Defendant Flower Buyer’s Motion for Summary Judgment, or in the alternative, Summary Adjudication, is PLACED OFF CALENDAR.

ANALYSIS:

Plaintiff Alice Kenney (“Plaintiff”) filed the instant action for breach of contract, misrepresentation and related claims against Defendant Flower Buyer (“Defendant”) on May 1, 2018. On October 21, 2019, the Court granted Defendant’s Motion to Compel Plaintiff’s Responses to Form

Interrogatories, Set One; Requests For Production of Documents, Set One; for Order

Establishing Admissions; and for Monetary Sanctions. (Minute Order, dated 10/21/19.) On November 5, 2019, Plaintiff filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. Plaintiff filed the instant motion for terminating sanctions on November 21, 2019. To date, no opposition has been filed.

The Motion for Summary Judgment, or in the alternative, Summary Adjudication was initially set to be heard on January 21, 2020, then continued to be heard concurrently with the instant Motion for Terminating and Monetary Sanctions. That motion is also unopposed.

Motion for Terminating and Monetary Sanctions

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030, subd. (d).) Defendant moves for dismissal of Plaintiff’s action as a terminating sanction for her failure to comply with the Court’s October 2, 2019 order. Defendant also moves for monetary sanctions of $2,055.00.

The court finds that terminating sanctions are warranted here. Following the Court’s ruling regarding Defendant’s discovery requests, Defendant served notice of the order on October 21, 2019 by mail. (Notice of Ruling, filed 10/21/19; Motion, Javaheri Decl., ¶8 and Exh. D.) Despite notice of the Court’s order, Plaintiff never served responses to the discovery requests. (Id. at ¶¶9-10.) Given the notice provided, the Court finds Plaintiff’s failure to serve responses to be a willful failure to comply with the October 21, 2019 order. Furthermore, although Plaintiff was properly served with the instant Motion for Terminating and Monetary Sanctions, she has not opposed it. Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Plaintiff compliance with the Court’s orders cannot be achieved through lesser sanctions. However, the Court declines to order monetary sanctions as they have been previously awarded and ignored by Plaintiff. An additional order for monetary sanctions, therefore, would be futile.

Defendant Flower Buyer’s Motion for Terminating and Monetary Sanctions Against Plaintiff Alice Kenney is GRANTED AS TO TERMINATING SANCTIONS AND DENIED AS TO MONETARY SANCTIONS. THE COURT HEREBY DISMISSES THE COMPLAINT WITH PREJUDICE.

Motion for Summary Judgment / Adjudication

In light of the Court’s ruling on the Motion for Terminating and Monetary Sanctions Against Plaintiff, the Motion for Summary Judgment, or in the alternative, Summary Adjudication, is PLACED OFF CALENDAR.

Moving party to give notice.