Case Number: BC557461 Hearing Date: July 24, 2018 Dept: A

# 5. Elaine McClure v. Richard Braxton, et al.

Case No.: BC557461

Matter on calendar for: Hearing on unopposed motion for terminating sanctions or to set issue for trial

Tentative ruling:

I. Background

Plaintiff Elaine McClure alleges that her son was shot and killed at the 89th St. Motel, where he resided. The unidentified shooter allegedly had a verbal and physical altercation with a tenant of the motel on the motel premises; left the motel premises, returned with a handgun, and began shooting; and shot and killed McClure’s son. McClure alleges that the owners/operators of the motel, Defendants Richard and Barbara Braxton, negligently failed to repair the motel’s defective gate, and had advance knowledge that the shooter posed a safety risk to the tenants of the motel, because they knew that the shooter and other tenant were drug dealers, and that the motel operates in a high crime area.

Plaintiff’s operative First Amended Complaint (“FAC”) alleges Causes of Action for:

(1) Premises Liability;

(2) Negligence;

(3) Wanton And Reckless Misconduct;

(4) Wrongful Death;

(5) Survival Action;

(6) Breach of Oral and Written Contracts; and

(7) Fraud.

The Court bifurcated the 6th and 7th causes of action, concerning whether the parties had entered into a valid settlement agreement, and ordered those causes of action to be tried first. The matter was called for jury trial on June 26, 2018, but Defendant Braxton did not appear. (Ms. Braxton’s counsel previously was relieved, and Ms. Braxton is proceeding pro per.) The minute order from that date allows Plaintiff to file a motion to strike defendant’s answer and enter default by July 10, 2018. The trial was taken off calendar. (See 6/26/18 Minute Order.)

Plaintiff has now filed an unopposed motion for terminating sanctions or in the alternative to set issue for trial under CCP § 594.

II. Standard

CCP § 2023.010 defines misuses of the discovery process, in relevant part: “(c) [e]mploying a discovery method in a manner that causes unwarranted annoyance… and expense; (d) [f]ailing to respond to an authorized method of discovery;” and “(g) [d]isobeying a court order to provide discovery.”

A court may impose monetary, issue, evidence, or terminating sanctions upon a party misusing the discovery process. (See CCP §§ 2023.030, 2030.290(c), 2030.300(e), 2031.300(c), 2031.310(e), and 2033.290(e).)

Per CCP § 2023.030(d), terminating sanctions include: (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.

Terminating sanctions for discovery abuses are to be used sparingly because of the drastic effect of their application. (Department of Forestry and Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191.) Further, terminating sanction should only be used 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.)

Usually, a party’s disobedience of an order compelling discovery must come before an order imposing terminating sanctions. (Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021.) However, in some circumstances, a judge may impose terminating sanctions, even if no other sanction were first imposed, when a party continually and willfully violates the discovery process. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 490.)

III. Analysis

Plaintiff moves for terminating sanctions against Defendant in the form of striking defendants’ answer and entering default. In the alternative, Plaintiff requests the court to set issue for trial under CCP § 594 to resolve the matter on the merits.

Plaintiff argues that Defendants have disregarded their obligations and have made continual efforts to frustrate prosecution. Defendants failed to timely file an answer and defaults were entered, but the defaults were set aside and an answer was filed on March 30, 2015. (Garcia, Decl., ¶¶ 3-5.) Plaintiff filed a notice of settlement and the Court vacated the trial date based upon such notice. (Id. at ¶ 6.) On May 13, 2016, the parties appeared in front of the Court and informed the Court of the settlement, but Defendant has yet to comply with the agreement. (Id. at ¶¶ 7-8.) Defendants’ attorney was relieved as counsel on April 30, 2018 in the presence of Braxton. (Id. at ¶ 12.) During the April 30, 2018 hearing, Defendants’ former counsel represented that all pertinent information was conveyed to Braxton and Braxton acknowledged receipt of such information. (Id. at ¶ 13.) On April 30, 2018, Plaintiff served Braxton with a Notice to Appear and Produce Records at Trial in lieu of Subpoena. (Id. at ¶ 15.) On June 18, 2018, defendants failed to appear for the final status conference and also failed to appear for trial on June 26, 2018. (Id. at ¶¶ 16-17.)

The Court does not find the conduct of Defendant to be a misuse of the discovery process to warrant terminating sanctions. The only connection to the discovery process that Plaintiff has referred to is the Notice to Appear and Produce Records at Trial in lieu of Subpoena. Absent other conduct, this is insufficient to show abuse of the discovery process. Defendants have participated in the case and there are no allegations that Defendants have not produced discovery in the past.

Accordingly, the motion for terminating sanctions is denied.

However, the Court grants Plaintiff’s request to set issue for trial under CCP § 594. The Court will set for trial causes of action 6 and 7. Plaintiff shall give notice to defendant of the trial. If defendant fails to appear, the Court will proceed with an uncontested evidentiary hearing. Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal. App. 4th 694, 705. As plaintiff has agreed previously, if plaintiff prevails on those causes of action, trial of the remaining causes of action will be unnecessary.

IV. Ruling

The motion for terminating sanctions is denied.

The Court grants Plaintiff’s request to set issue for trial.