Hernandez, Montiel v. Cabotje		CASE NO. 114CV262556
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 16

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Departme.nt 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of Defendant Rodante Cabotje for terminating sanctions for failure to comply with a court order and for further sanctions was argued and submitted.

Plaintiff filed formal opposition to the motion.

1. Statement of Facts.

Plaintiffs filed a complaint seeking damages for an alleged automobile accident that occurred on 21 March 2014.

On 14 May 2014, Defendant’s discovery requests[1] were served on Plaintifs.  Responses were due on 18 June, 2014.

On 25 June 2014, Defendant sent a letter to Plaintiff, and requested responses by July 7 2014.

On 4 August 2014, Defendant filed this motion to compel responses and for sanctions.

In a lawful order of this Court filed on 29 August 2014, Plaintiffs were ordered to respond to the propounded discovery without objections and within 20 calendar days.  Defendant’s request for monetary sanctions in the amount of $584.00 is GRANTED. Defendant shall pay Plaintiff said sum within 20 calendar days.

On 22 August 2014, counsel for Plaintiffs filed a motion to withdraw as counsel of record.  The motion was denied without prejudice since there was an improper proof of service, a failure to use the Judicial Council form and the failure to provide a proposed order.

1. Discovery Dispute.

In the present motion, Defendant seeks terminating sanctions because Plaintiffs did not comply with this Order.

In opposition, counsel for Plaintiffs states that he attempted to file motion to withdraw 119 August 2014 and the Court rejected the motion for technical deficiencies.[2]  A new motion is calendared for “16 December 2004″ [sic].

Council also states that he has been unable to contact Plaintiff Hernandez since shortly after filing the complaint.  There is no mention of Plaintiff Montiel.

III.     Analysis.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  See Rule of Court 2.30.

Ordering terminating sanctions is not an action this Court can undertake without careful consideration; and only in circumstances where a violation is willful, preceded by a history of abuse and the evidence shows that a less severe sanction would not produce compliance with the discovery rules.  (See Van Sickle v. Gilber (2011) 196 Cal. App. 4th 1495, 1516 (Granting terminating sanctions where a lawyer failed to respond to numerous special interrogatories and demands for production of documents, failed to respond to motion to compel discovery, failed to obey a court order to provide discovery, and failed to respond to demands for production even after filing motion for relief from default.); Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992 (Holding that trial court abused its discretion in failing to grant terminating sanctions against defendant who engaged in persistent and serious misuse of the discovery process); Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279 (holding that terminating sanctions were not an abuse of discretion where appellant repeatedly failed to answer discovery requests despite numerous extensions sought and granted, the issuance of court orders and monetary sanctions); Sec. Pac. Nat. Bank v. Bradley (1992) 4 Cal. App. 4th 89, 98 (overturning trial court on error for granting terminating sanctions where defendant’s failure to file separate responsive statement was not willful).  Where these conditions are met, the Court is justified in ordering terminating sanctions.

In this matter, the papers can be construed as indicating that that counsel for Plaintiff has no expectation that he will be able to provide responses to the discovery at any time.

The motion of Defendant for terminating sanctions is GRANTED.  The complaints of the Plaintiffs are DISMISSED.

1. Sanctions.

Defendant makes a request for monetary sanctions in the amount of $584.00 against Plaintiffs only.  The request is code-compliant.  The request of Defendant is GRANTED.  Plaintiffs are ordered to pay the sum of $584 in additional sanctions to counsel for Defendant within 20 days of the date of the filing of this ORDER.

1. Order.

The motion of Defendant for terminating sanctions is GRANTED.  The complaints of the Plaintiffs are DISMISSED.

Defendant makes a request for monetary sanctions in the amount of $584.00 against Plaintiffs only.  The request is code-compliant.  The request of Defendant is GRANTED.  Plaintiffs are ordered to pay the sum of $584 in additional sanctions to counsel for Defendant within 20 days of the date of the filing of this ORDER.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] Form Interrogatories, Set One, to Plaintiff Teofila Hernandez; Request for Production of Documents, Set One, to Plaintiff Teofila Hernandez; Form Interrogatories, Set One, to Plaintiff Enrique Montiel; Special Interrogatories, Set One, to Plaintiff Enrique Montiel; Request for Production of Documents, Set One, to Plaintiff Enrique Montiel.

[2] The recitation of facts in Part I is the correct recitation of the events in question