Case Number: BC644806 Hearing Date: December 26, 2018 Dept: 7

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

On December 22, 2016, Plaintiff Gregory Wong (“Plaintiff”) filed this action against Defendant Jasmine Yokomoto (“Defendant”) for motor vehicle and general negligence relating to a December 30, 2014 automobile accident. On August 20, 2018, the Court granted Defendant’s motion to compel Plaintiff’s further responses to Form Interrogatories and request for monetary sanctions. Plaintiff was ordered to provide further verified responses and to pay a $510.00 monetary sanction to Defendant within twenty (20) days of the date of the Order. (Declaration of Sean Olk, ¶ 9.) Plaintiff’s counsel paid the monetary sanction but failed to serve further responses. Defendant moves for terminating sanctions and monetary sanctions.

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code of Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

The Court may impose a 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 the interrogatories were 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.)

Plaintiff filed no opposition to this Motion and has presented no evidence showing his failure to comply with the Court’s Order was not willful. It is undisputed that Plaintiff failed to serve further responses to Form Interrogatories and that he disobeyed a court order to do so. Further, Plaintiff’s counsel was served with a Notice of Ruling and counsel even paid the monetary sanctions ordered by court and enclosed a copy of the Notice of Ruling with the check. (Olk Decl., ¶ 11.) Therefore, the Court concludes Plaintiff knew of his discovery obligation and the Court Order compelling further responses, but willfully failed to comply. Such conduct is an abuse of the discovery process. Further, given Plaintiff’s prior failures to participate in the discovery process, the Court finds lesser sanctions would not compel compliance.

The Motion for terminating sanctions is GRANTED. As the Court is granting terminating sanctions, it declines to also impose monetary sanctions.

Moving party to give notice.