Hatter v. Nguyen		CASE NO. 112CV220737
DATE: 24 October 2014	TIME: 9:00	LINE NUMBER: 2

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 23 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 24 October 2014, the motion of Defendant Andrew Nguyen for terminating sanctions for failure to comply with a lawful Court Order was argued and submitted.

Plaintiff Carmella Hatter did not file formal opposition to the motion.[1]

All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”  Rule of Court 3.1345(d).

1. Statement of Facts.

Plaintiff filed a complaint against Defendant for injuries as a result of a motor vehicle incident that occurred on 17 March, 2010.  Plaintiff claimed wage loss, hospital and medical expenses, general damage, loss of use of property, and loss of earning capacity.

Plaintiff is representing herself in propria persona.[2]

1. Discovery Dispute.

On 05 May, 2014, the discovery response for form interrogatories and production of documents from Plaintiff was due, but Plaintiff did not respond.  On 08 May, 2014, Defendant’s counsel sent a reminder letter to Plaintiff regarding the lack of response, and responses were required by 19 May, 2014.[3]  Plaintiff did not respond to the reminder letter.

In a lawful Order of this Court filed on 14 July 2014, Plaintiff was ordered to respond to Defendant’s form interrogatories, set one and request for production of documents, set one, with code-compliant responses without objections within 20 days of the date of the mailing of this Order.  The request for monetary sanctions by Defendant was denied.

In an e-mail and exchange that ended on 9 September 2014, defense counsel advised Plaintiff at quote given your failure to provide such responses and documents, I will be making a motion for terminating sanctions.”

The present motion was filed on 29 September 2014.  As of the filing of the motion, Plaintiff has still not responded to Defendant’s discovery nor has she complied with the lawful Order of this Court.

III.     Analysis.

1. Failure to Comply with an Order to Respond to Discovery Requests.

Code of Civil Procedure, § 2023.030(d) provides that the Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process.  The terminating sanction may be imposed 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; or

(4)     An order rendering a judgment by default against that party.  Code of Civil Procedure, § 2023.030(d).

Disobeying a court order to provide discovery is a misuse of the discovery process.  Code of Civil Procedure, § 2023.010(g).  Defendant argues Plaintiff has failed to comply with the previous court orders, thereby engaging in a misuse of the discovery process.  To demonstrate Plaintiff’s non-compliance, Defendant points to a number of documents she claims have not been produced.

Terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.  (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)  Two facts are absolutely prerequisite to imposition of a terminating sanction: there must be a failure to comply, and the failure must be willful.  (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)

Failing to comply with a lawful Order is a serious matter.  The failure of the Plaintiff to provide the discovery responses as requested is also serious.

The motion of Defendant Andrew Nguyen for terminating sanctions for failure to comply with a lawful Court Order is GRANTED.  Plaintiff’s complaint is DISMISSED.

1. Sanctions.

Defendant does not make a request for monetary sanctions or any other type of sanction.

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1. Order.

The motion of Defendant Andrew Nguyen for terminating sanctions for failure to comply with a lawful Court Order is GRANTED.  Plaintiff’s complaint is DISMISSED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] This Court is not insensitive to the hardships placed on pro se litigants, even if they are experienced. Trial Courts are given broad discretion to consider motions and the nature of the motion is determined by the relief sought, not specific words contained therein. (See Sole Energy Co. v. Petrominerals Corp. 128 Cal.App.4th 187, 193, 26 Cal.Rptr.3d 790.)  Although a judge should ensure that self-represented litigants are not being misled or unfairly treated (see Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284), self-represented litigants are not entitled to special treatment with regard to the Rules of Court or Code of Civil Procedure. “[W]e cannot disregard the applicable principles of law and accord defendant any special treatment because he instead elected to proceed in propria persona. [Citations.]” (Stein v. Hassen (1973) 34 Cal. App. 3d 294, 303.) “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.’” (Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)  Therefore, a self-represented litigant is held to the same standards as an attorney. (Id.; see also Burnete v. La Casa Dana Apts. (2007) 148 Cal.App.4th 1262, 1264 [mistake in judgment in representing oneself not considered excusable neglect].)  When a litigant is appearing in propria persona, he or she is entitled to the same, but no greater, consideration than other litigants and attorneys. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444; see also Kobaysahi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Rappleyea v. Campell (1994) 8 Cal.4th 975, 984-985.)

[3] Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)