Case Number: BC701775 Hearing Date: April 26, 2019 Dept: 4A

Motion for Terminating Sanctions

The court considered the moving papers. No opposition was filed.

BACKGROUND

On April 12, 2018, in BC701775, plaintiff Doris Tse (“Plaintiff”) filed a complaint against defendant USC Norris Cancer Hospital (“Defendant”) for medical malpractice based on a failure to diagnose.

On April 12, 2018, in BC701776, Plaintiff filed a complaint against Dr. Heather MacDonald.

On June 14, 2018, the cases were deemed related. No consolidation of these cases was ever ordered, as discussed in the ruling issued concurrently herewith in BC701776.

Trial is set for October 15, 2019.

PARTY’S REQUEST

Defendant requests the court for an order imposing a terminating sanction against Plaintiff for willfully disobeying a November 20, 2018 court order compelling Plaintiff to serve verified responses, without objections, to: (1) Defendant’s Form Interrogatories (Set One), (2) Special Interrogatories (Set One), and (3) Request for Production of Documents (Set One).

LEGAL STANDARD

The court may impose monetary, issue, evidence, or terminating sanctions if a party fails to comply with a court order compelling a response to interrogatories or a demand for inspection, copying, testing, or sampling. (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).) California Code of Civil Procedure section 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 . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (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 p. 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, supra, 223 Cal.App.4th at p. 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, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

ANALYSIS

On November 20, 2018, the court granted Defendant’s motion to compel Plaintiff’s responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) within twenty days of the order. (Yarvis Decl., ¶ 3, Exh. A.) Defendant extended Plaintiff’s deadline to provide the outstanding discovery responses until January 31, 2019. (Yarvis Decl., ¶ 4.) Defendant had not received the outstanding discovery responses as of the signing of Matthew A. Yarvis’ declaration on February 19, 2019. (Yarvis Decl., ¶ 6.)

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, California Code of Civil Procedure sections 680.010, et seq. (Id. at p. 615.)

The court finds that Plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the court’s November 20, 2018 order to serve verified discovery responses without objections. (Code of Civ. Proc. §§ 2023.010, subd. (g); 2023.030.) Thus, the court finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against Plaintiff pursuant to California Code of Civil Procedure section 2023.030, subd. (d).)

The motion is GRANTED.

The court orders that Plaintiff’s complaint is dismissed as to Defendant USC Norris Cancer Hospital.

Defendant USC Norris Cancer Hospital is ordered to give notice of this ruling.