Case Name: Farmers Insurance Exchange v. Robert Cervantez
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 Defendant’s noncompliance with
discovery orders filed on September 15, 2017, granting Plaintiff’s motions to compel initial responses to its first sets of form interrogatories and request for production of documents. The Court originally ordered Defendant to serve complete verified responses, without objections, within 45 days. Defendant did not comply, and Plaintiff consequently filed a motion to strike Defendant’s answer and associated request for monetary sanctions. Although the Court denied that motion, it ordered Defendant to comply with the discovery orders within 30 days and directed that Plaintiff may bring a motion for discovery sanctions in accordance with applicable law if Defendant fails to comply. Defendant still has not responded to the subject discovery requests.

Plaintiff now moves, once again, to strike Defendant’s answer to the complaint and for an award of monetary sanctions. 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. The Court made this exact point in its prior ruling, but Plaintiff yet again fails to properly characterize its motion as one for a terminating sanction. The substance of the motion suffers from a similar lack of care and attention to detail. Remarkably, despite the Court’s detailed ruling on the prior motion, Plaintiff neglects to cure the various deficiencies with its earlier presentation.

For context, the Court will first reiterate the foundational deficiencies with the prior motion. The sole legal authority Plaintiff cited in support was Code of Civil Procedure sections 2023.010 and 2023.030, subdivision (d), neither of which are independent enabling authorities for the relief sought. As this Court previously explained, 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 did not cite any statutory provision specifically authorizing a terminating sanction under the circumstances presented. Its memorandum of points and authorities was overly terse, spanning roughly half a page in length, and did 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].)

To these points, Plaintiff simply did not improve upon its presentation, making only minimal, insignificant modifications. Plaintiff now additionally cites Code of Civil Procedure section 2023.040, which merely specifies certain information that must be included in the notice of motion for a sanction and directs that such motion must be supported by a memorandum of points and authorities and, if a monetary sanction is sought, a declaration setting forth facts supporting the amount claimed. Section 2023.040 clearly does not itself authorize the imposition of sanctions. Plaintiff also references a single case, namely Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, which it cites for the general proposition that a terminating sanction is proper for repeated instances of failing to comply with discovery orders. Plaintiff does not otherwise discuss that case or compare its facts to the present circumstances. As before, its memorandum of points and authorities is unreasonably terse, lacking any meaningful discussion of law and facts.

Indeed, even though the Court explained in its prior ruling that willful noncompliance was lacking, Plaintiff does not mention that issue here. As articulated in the prior ruling, many cases have held that the imposition of nonmonetary sanctions for failure to comply with a court order is 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 (Creative); Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The Court found there was nothing in the record demonstrating willful noncompliance with the discovery orders, observing that Defendant’s counsel indicated she did not have contact with her client and was engaged in efforts locate him. Here, Defendant does not even minimally acknowledge the willfulness element let alone advance any argument addressing that element under the circumstances.

With that said, there is clearly statutory authority permitting the imposition of a terminating sanction for noncompliance with a discovery order compelling responses to interrogatories and/or document demands (see Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c)), and it is undisputed Defendant has not served responses as ordered by this Court on two separate occasions (i.e. initial discovery orders and subsequent order to comply). Further, the burden of showing that noncompliance was not willful rests with the party on whom the discovery was served, not the propounding party. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252–253 (Cornwall).) Thus, the Court will consider whether the imposition of a terminating sanction is appropriate at this juncture despite Plaintiff’s deficient presentation.

With respect to willfulness, a simple lack of diligence may be deemed willful where the party knew there was an obligation to comply with discovery, had the ability to comply, and failed to do so. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 (Deyo).) “A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at pp. 787-788.)

Defendant’s counsel repeats her previous argument that she has no contact with her client and requests more time to locate him. Although not framed as addressing the issue of willfulness, counsel perhaps intended to convey that Defendant’s noncompliance was not willful.

A failure to comply with a discovery order due to a prolonged absence can be deemed a willful failure to comply. (See Cornwall, supra, 66 Cal. App. 3d at pp. 252-253.) In Cornwall, the plaintiff did not respond to interrogators served by the defendant. (Id. at p. 252.) The plaintiff had moved to Hawaii and never received the interrogatories. (Id. at p. 253.) The plaintiff’s attorney tried various methods to get in contact with the plaintiff but was unsuccessful. (Ibid.) The trial court first granted the defendant’s motion to compel answers, and ordered the plaintiff comply within 30 days. (Id. at p. 252.) The plaintiff did not comply within the allotted time, and defendant brought a motion to dismiss. (Ibid.) The trial court granted the motion based upon a finding that the plaintiff’s failure to respond was a willful violation of a discovery order. (Ibid.) The plaintiff appealed the judgment, arguing his failure to comply was not willful because he was never given a copy of the interrogatories. (Id. at p. 253.) The appellate court rejected this argument, reasoning:

If a plaintiff wishes to avail himself of the California courts, he owes a duty to comply with its rules, such as the rules of discovery. To hold otherwise, would permit a litigant to disappear and not be obliged to comply with our discovery statutes. The failure to respond to his attorney’s letter may not have been wilful but a failure to keep his attorney posted on his whereabouts may, under the circumstances, be deemed ‘wilful.’
(Ibid.)

Here, Defendant has disappeared in the midst of discovery and efforts to locate him have been fruitless. While Defendant’s current counsel has had no contact with Defendant, Defendant was served with the summons and complaint at the outset of this litigation. Thus, he cannot be wholly ignorant of this litigation. Under these circumstances, Defendant’s absence over a period of ten months indicates a conscious choice by Defendant to cease communication with his attorney, and ignore this case. Implicit in this decision is a choice not to comply with any obligations or related court orders. Such a conscious failure to act is sufficient to render Defendant’s conduct willful. (See Deyo, supra, 84 Cal.App.3d at p. 787.)

Therefore, the Court finds Defendant’s failure to comply is willful.

Defendant also argues that these facts do not warrant a terminating sanction. According to Defendant, terminating sanctions have been imposed in other cases involving “more egregious, pervasive, and material violations of the opposing party’s discovery rights than are present here.” (Opp., p. 3:20-21.) The propriety of terminating sanctions is determined by the totality of the circumstances. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244-1246.) “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.) “[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (See Creative, supra, 75 Cal.App.4th at p. 496..)

Here, the circumstances are Defendant has been not been in contact with his attorney for many months. It is implausible that after so many months of effort to locate Defendant, additional searching will locate him. Furthermore, there is no reason to believe any lesser sanction will solve the underlying problem of Defendant’s absence. As the Cornwall court stated, a litigant cannot be permitted to disappear and thereby prevent discovery. Thus, the case cannot linger in indefinitely while defense counsel searches for her client.

Accordingly, Plaintiff’s motion to strike Defendant’s answer is GRANTED.

Turning to the issue of monetary sanctions, Plaintiff seeks $500 for the time and expense of bringing the instant motion. Plaintiff again cites no enabling statute. Plaintiff has an obligation to support its assertions with citation to relevant law and utterly fails to do so. (See Cal. Rules of Court, rule 3.1113(b).)

Accordingly, the request for monetary sanctions is DENIED.