Case Number: BC608229 Hearing Date: February 07, 2019 Dept: 4A

Motion for Terminating Sanctions

The court considered the moving, opposition, and reply papers.

On January 25, 2016, plaintiffs Allen Richman and Ann Richman filed a complaint against defendant James George Burnett for negligence and negligence per se based on an accident that occurred on February 4, 2014.

Trial is set for April 23, 2019

On September 26, 2018, the court granted defendant’s motion to compel the responses of plaintiff Ann Richman (“plaintiff”) to form interrogatories, set one. Additionally, the court ordered plaintiff to pay $450 in sanctions on January 11, 2018.

Defendant requests that the court impose a terminating sanction against plaintiff for failure to comply with the court’s orders, and requests monetary sanctions in the amount of $1,180.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. (CCP § 2025.450(h) [depositions]; § 2030.290(c) [interrogatories]; § 2031.300(c) [demands for production of documents].) CCP § 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP § 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) “Generally, ‘[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 the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, 223 Cal.App.4th at 390, citing Lang, supra, 77 Cal.App.4th at 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4 [terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

On September 26, 2018, the court ordered plaintiff to provide verified responses without objections to the defendant’s form interrogatories, set one, within 20 days and to pay $300 to defendant within 30 days. Additionally, the court ordered plaintiff to pay $450 in sanctions to defendant on January 11, 2018.

As of the filing of this motion, defense counsel has not received responses to the discovery requests and has not received any payment of sanctions.

In opposition, plaintiff argues that she separated from her husband, plaintiff Allen Richman, and is proceeding with a divorce. Her attorney of record is also her husband’s attorney in this litigation and counsel is long-time friends with her husband. Plaintiff was deciding if she would be amenable to continued representation by her counsel of record and has recently agreed. It appears her responses have since been produced. (Reply, 2:16-17.)

Whether plaintiff complied with the court’s order to pay monetary sanctions is not relevant to the court’s determination as to whether terminating sanctions¿should be imposed, and the court has not considered that factor in making its determination. A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿(Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, CCP §§680.010, et seq. (Id. at 615.)

The court finds that terminating sanctions would be a harsh imposition under the circumstances because it appears that she was going through a separation and divorce and has since produced responses.

The motion is therefore DENIED.

However, the court finds that monetary sanctions are warranted pursuant to CCP §§ 2023.010 and 2023.030. Plaintiff disobeyed the court’s September 26, 2018 order which necessitated motion practice. The court finds that $540 ($160/hr. x 3 hrs., plus a $60 filing fee) is a reasonable amount to be imposed against plaintiff.

Plaintiff Ann Richman is ordered to pay defendant $540 within 30 days of this order.

Defendant is ordered to give notice of this ruling.