Case Number: BC612498 Hearing Date: June 12, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR TERMINATING SANCTIONS; MOTION GRANTED

On March 3, 2016, Plaintiffs Dawneisha Sheree McClinton (“McClinton”) and Jennifer Williams (“Williams”) (collectively, “Plaintiffs”) filed this action against Defendants Clarence Schilt (“Defendant”) and Midway HFC Company for personal injuries arising out of a March 25, 2014 automobile accident. On April 4, 2016, Midway HFC Company was dismissed from the action. On February 26, 2018, the Court granted Defendant’s motion to compel McClinton’s deposition and McClinton was ordered to appear for her deposition within twenty (20) days.

On March 7, 2018, Defendant Noticed McClinton’s deposition for March 19, 2018. (Declaration of Keith L. Allen, ¶ 14; Exh. A.) Plaintiff failed to appear and a certificate of non-appearance was taken. (Allen Decl., ¶ 17.) As a result, Defendant has been unable to investigate McClinton’s claims regarding her injuries, medical treatment, and other economic damages. (Allen Decl., ¶ 16.) Defendant moves for evidence, issue, or terminating sanctions based on McClinton’s failure to appear for deposition and failure to comply with the Court’s order.

The Court may impose an issue, evidence, or terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code of Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code of Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code of Civ. Proc., § 2023.030, subd. (d)(3).) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party on whom discovery is served has the burden of showing that the failure to respond was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

McClinton filed no opposition to this Motion and has presented no evidence showing her pattern of noncompliance and failure to prosecute this action has been anything but willful. There is evidence that lesser sanctions will not compel compliance with discovery rules, based on her repeated failure to appear for her deposition or to communicate with counsel.

Accordingly, the Motion for terminating sanctions is GRANTED and this action by McClinton is dismissed with prejudice. As the Court is granting terminating sanctions, it declines to also impose monetary sanctions.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT7@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.

Moving party to give notice.