Case Number: BC650814 Hearing Date: July 27, 2018 Dept: 4

MOVING PARTY: Defendants Lawrence Thornquist and Marilyn Thornquist

RESPONDING PARTY: None

Motion for an Order for Terminating Sanctions Against Plaintiff

The court considered the motion. No opposition was filed.

BACKGROUND

On February 16, 2017, plaintiff Christopher W. Nickelson filed a complaint against defendants Lawrence Thornquist and Marilyn Thornquist for motor vehicle negligence based on a February 1, 2016 collision.

On May 8, 2018, the court granted defendants’ motions to compel plaintiff to serve discovery responses and to appear for his deposition.

On June 15, 2018, the court granted plaintiff’s counsel’s motion to be relieved as counsel.

Trial is set for August 16, 2018.

DISCUSSION

Defendants request that the court impose terminating sanctions against plaintiff for his failure to comply with the court’s order dated May 8, 2018.

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, 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, 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, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

On May 8, 2018, the court entered an order compelling plaintiff to serve on defendants verified responses without objections to defendants’ Form Interrogatories and Demand for Identification and Production of Records, Documents and Other Tangible Items, within 20 days. The court also ordered plaintiff to appear for his deposition within 30 days of the date of the hearing on a mutually agreeable date. The court further ordered plaintiff to pay monetary sanctions in the amount of $642.50 within 30 days.

Defendants contend that although the parties agreed to a deposition date of June 4, 2018, plaintiff failed to appear. Defendants also contend that plaintiff has failed to serve discovery responses and pay the sanctions.

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.

The court finds that plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the court’s May 8, 2018 order by failing to respond to defendants’ discovery requests and to appear for his deposition. CCP §§ 2023.010(g), 2023.030. The court thus finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against defendant pursuant to CCP § 2023.030(d).

The motion is GRANTED.

The court orders that plaintiff Christopher W. Nickelson’s complaint against defendants Lawrence Thornquist and Marilyn Thornquist is dismissed. CCP § 2023.030(d)(3).

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: July 27, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court