Case Number: 17K07034 Hearing Date: May 30, 2018 Dept: 94

Defendants TCK Nails & Spa’s and Tammy Nguyen’s Motion for Terminating Sanctions against Plaintiff Reda Hill is GRANTED. The court declines to impose monetary sanctions. This case is dismissed with prejudice. The trial date and all future court sates in this case are advanced and vacated.

Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c), 2031.300(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Pursuant to CCP Section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(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.

(4) An order rendering a judgment by default against that party.

(CCP § 2023.030(d).)

Discussion

Defendants TCK Nails & Spa and Tammy Nguyen (“Defendants”) move to dismiss Plaintiff Reda Hill (“Plaintiff”) action pursuant to CCP section 2023.030(d).

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c), 2031.300(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

On February 22, 2018, the court ordered Plaintiff to serve responses to form interrogatories and requests for production of documents served on her by Defendants TCK Nails & Spa and Tammy Nguyen, within 30 days. (Motion, Stevens Decl., ¶7). Plaintiff was further ordered to pay sanctions in the amount of $867.00 within 30 days. (Ibid.) To date, Plaintiff has failed to comply with any part of the court’s order. (Id. at ¶9.)

The court agrees it appears that this failure by Plaintiff to comply with its February 22, 2018 order amounts to willful disobedience. Plaintiff’s counsel appeared at the hearing, and notice of the order was served on counsel by mail on February 23, 2018. (Id. at ¶8 and Exh. A.) Plaintiff’s counsel was also properly served with the instant motion for terminating sanctions, and opposes same only to the extent that Defendants are seeking monetary sanctions against him and his firm. Plaintiff’s counsel represents that he has lost complete contact with Plaintiff. Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Plaintiff’s compliance with the court’s orders cannot be achieved through lesser sanctions. Therefore, the motion to dismiss this action is granted. The court, however, declines to additionally impose monetary sanctions.

Moving party to give notice.