Case Number: 18STCV08915 Hearing Date: March 09, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Department 32

DONGYA HONG,

Plaintiff,

v.

DEWAYNE EARL GREEN-SESSION,

Defendant.

Case No.: 18STCV08915

Hearing Date: March 9, 2020

[TENTATIVE] order RE:

motion for terminating sanctions

Plaintiff Dongya Hong (“Plaintiff”) moves for terminating sanctions against Defendant Dewayne Earl Green-Session (“Defendant”). The court has discretion to impose terminating sanction when a party willfully disobeys a discovery order. (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c).) The court may impose a terminating sanction by striking a party’s pleading. (Code Civ. Proc., § 2023.030, subd. (d)(1).)

In its order of August 28, 2019, the Court ordered Defendant to serve verified responses to requests for production of documents that Plaintiff served on Defendant within thirty (30) days of notice of the order. Plaintiff served Defendant with notice of the ruling by mail on August 29, 2019. Defendant thus had until October 3, 2019 to serve responses in compliance with this Court’s order. Subsequently, Defendant served responses, which contained a verification that was dated August 25, 1984, and did not include a copy of Defendant’s driver’s license, as required. Defendant has thus disobeyed this Court’s order of August 28, 2019.

The Court initially heard this motion on January 13, 2020. In opposition, Defendant’s then-counsel, Michael F. Moon stated that Counsel had been unable to locate Defendant to correct the errors in the verification and obtain a copy of Defendant’s driver’s license. Counsel states that Counsel is prepared to stipulate to liability on behalf of Defendant, or, in the alternative, to request intervention on the part of Allstate Insurance Company (“Insurer”). The Court ruled that a stipulation to liability does not preclude Plaintiff’s right to conduct discovery from Defendant. Accordingly, a stipulation to liability does not moot the motion for terminating sanctions. However, the Court also ruled that if Insurer has a significant interest in this matter, which Defendant cannot protect, then Insurer may have the right to intervene. (See Code Civ. Proc., § 387, subd. (b).) Accordingly, the Court continued to the motion to March 5, 2020.

Defendant’s counsel, Scott B. Spriggs, has filed another opposition and a declaration. The memorandum of points and authorities states: “Defendant’s counsel has made several attempts to get DEFENDANT to properly date the verifications which he previously signed and affixed the wrong date. To date, DEFENDANT has NOT contacted Defendant’s counsel to remedy the same, despite Defense counsel sending personal carrier’s [sic] to Defendant’s known residential address.” (Memorandum of Points and Authorities, p.2:8-11.) In his declaration Spriggs states: “I am working diligently with my client to obtain the verifications and hope to have same served prior to the hearing on the motion, which would thys make the motion moot. Further, I have made several attempts to get DEFENDANT to sign the aforementioned verifications and have not received the signed verifications from client to date.” (Declaration of Scott B. Spriggs, ¶ 3.)

Defendant’s opposition and supporting declaration does not inspire confidence. The responses were due on or before October 3, 2019. Now, five months later, it still is unclear when, if ever, the responses will be done. It appears that Defendant’s counsel has lost contact with his client, and as a result, there is no reason to believe that proper discovery responses will be served.

Plaintiff has noticed both monetary and terminating sanctions against Defendant (but not Defendant’s counsel). The Court must impose graduated sanctions in addressing such issues. The Court finds good cause to impose monetary sanctions at this time, as Defendant has had ample opportunity to provide responses, and the failure to do so constitutes an abuse of the discovery process. Therefore, Defendant is ordered to pay Plaintiff, by and through counsel, sanctions in the amount of $1,810, which was requested by Plaintiff. The Court finds this amount to be fair and reasonable, commensurate with the work required on this issue.

The Court continues the motion insofar as it seeks terminating sanctions. If the monetary sanctions ordered by the Court do not compel compliance, the Court will have no choice but to impose terminating sanctions as a last resort.

CONCLUSION AND ORDER

Plaintiff’s motion is granted with respect to monetary sanctions. The Court orders Defendant (but not Defendant’s counsel) to pay $1,810, by and through counsel, within thirty (30) days of notice of this order.

The Court continues the motion with respect to terminating sanctions to April 15, 2020, at 1:30 p.m. The Court provides notice that if Defendant does not provide verified discovery responses, as required by the Code of Civil Procedure and this Court’s prior orders, the Court intends to grant the motion for terminating sanctions, meaning the Court would strike Defendant’s answer and enter a default judgment against Defendant.

The Court’s clerk shall provide notice.

DATED: March 9, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court