Case Name: Farmers Insurance Exchange v. Robert Cervantez, et al.
Case No.: 17CV304891

This is a negligence action brought by Farmers Insurance Exchange (“Plaintiff”) against Robert Cervantez (“Defendant”) to recover vehicle collision damages sustained by its insured. Plaintiff alleges it “has been assigned or is subrogated in the place of and to the demands of its said policyholder, for said policyholder’s motor vehicle damage[.]” (Complaint, ¶2.)

The matter currently before the Court concerns discovery orders filed on September 15, 2017, granting Plaintiff’s motions to compel initial responses from Defendant to its first sets of form interrogatories and request for production of documents. The Court ordered Defendant to serve complete verified responses, without objections, within 45 days. It is undisputed that Defendant did not comply; he has not yet served any responses to the subject discovery.

Plaintiff filed the instant motion to strike Defendant’s answer to the complaint as a result of his failure to comply with the discovery orders. While the motion is entitled as one to strike Defendant’s answer, Plaintiff is apparently seeking a terminating sanction pursuant to the Civil Discovery Act and the motion should have been framed as such. Plaintiff also requests an award of monetary sanctions.

As a preliminary matter, Plaintiff is admonished for the disorganized presentation of its motion. The motion consists of a single document with five numbered pages. The first two pages consist of the notice of motion and motion itself, and are immediately followed by page 3, which is a declaration of Plaintiff’s counsel. The declaration refers to an Exhibit 1 attached thereto, particularly a Notice of Ruling. That ruling directly follows the declaration, inserted before pages 4 and 5 of the motion, and is not specifically labeled as Exhibit 1. Subsequent to the Notice of Ruling is a stray page stating “Exhibit ‘A’.” The memorandum of points and authorities appears next as page 4, followed by a proof of service numbered page 5. The Court also observes that Plaintiff repeatedly misspells Defendant’s last name as “Cervantes” throughout the motion. Plaintiff’s counsel should exercise greater care in presenting papers to the Court.

The sole legal authority cited in support of Plaintiff’s request for a terminating sanction is Code of Civil Procedure sections 2023.010 and 2023.030, subdivision (d). Neither of these statutes are independent enabling authorities for the relief sought. Section 2023.010 merely describes types of conduct constituting misuses of the discovery process. As for section 2023.030, subdivision (d), that provision generally states that a court may impose a terminating sanction, including an order striking the pleading of a party engaging in the misuse of the discovery process, “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” Plaintiff neglects to cite any statutory provision specifically authorizing a terminating sanction under the circumstances presented. Its memorandum of points and authorities is overly terse, spanning roughly half a page in length, and does not set forth any specific law or meaningful discussion of the motion. (See Cal. Rules of Court, rule 3.1113(b) [memorandum must include statement of law and discussion of legal authorities in support of position].) These deficiencies alone justify denying the motion.

Even if Plaintiff had supported its motion with citation to authorities specifically authorizing nonmonetary sanctions, the imposition of a terminating sanction would not be appropriate at this time for two reasons.

First, there is case authority holding that the imposition of nonmonetary sanctions for failure to comply with a court order may be permissible only for willful disobedience. (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) Here, the element of willfulness is absent. Defendant’s counsel indicates she does not have contact with her client. Defendant’s counsel states she has made “numerous” efforts to locate him with the assistance of a private investigator, but has been unable to do so. (Opp., p. 2:2-4.) There is nothing indicative of willful non-compliance by either Defendant or his counsel. Accordingly, nonmonetary sanctions are inappropriate.

Next, Defendant’s actions do not justify a terminating sanction because there has been limited incremental progression of sanctions. “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination… If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701–702.) In rare circumstances, such as particularly egregious abuse, terminating sanction can be imposed even without prior noncompliance. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, [approving of terminating sanction without violation of prior court order based upon egregious spoliation of evidence].)

This case involves a single failure to comply with a pair of discovery orders. To impose a terminating sanction based upon such a scant record of noncompliance would be contrary to the incremental approach favored by the law. Moreover, Defendant’s conduct is not sufficiently egregious for a terminating sanction without a more prolonged history of noncompliance.

For the above reasons, the motion for an order striking Defendant’s answer as a terminating sanction is DENIED. With that said, given that Defendant undisputedly failed to comply with the Court’s prior orders, the Court hereby orders compliance within 30 days of the prior discovery orders. (See Code Civ. Proc., § 128, subd. (a)(4) [court has inherent power to enforce its orders].) If Defendant fails to comply after that time, Plaintiff may bring a motion for discovery sanctions in accordance with applicable law.

Turning to the issue of monetary sanctions, Plaintiff’s counsel requests monetary sanctions in the amount of $500 against Defendant. Plaintiff’s request for monetary sanctions is cursory, lacking even a single citation to law. Plaintiff seeks monetary sanctions only for the efforts expended in bringing the motion for a terminating sanction, rather than as an independent sanction for Defendant’s violation of the Court’s orders. The notice of motion and moving papers fail to present the required notice and specificity of §2023.040. Further monetary sanctions are DENIED.