Lawzilla Additional Information:
Per the Los Angeles court records plaintiff is represented by attorney Justin Cannon who was sanctioned by the judge. Note: this hearing was continued. The tentative ruling below is not a final ruling.

Case Number: BC655931 Hearing Date: May 16, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

MArtin Bender,

Plaintiff,

v.

Stephen Naczinski, et al.,

Defendants.

Case No.: BC655931

Hearing Date: May 16, 2018

[TENTATIVE] order RE:

defendant’s motion for Terminating Sanctions

Defendant Stephen Naczinski (“Defendant”) has filed a motion for terminating sanctions against Plaintiff Martin Bender (“Plaintiff”) for Plaintiff’s failure to obey a Court order compelling his appearance at deposition. Plaintiff has not filed any opposition.

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); 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

Defendant moves for terminating sanctions against Plaintiff pursuant to CCP section 2023.030(d)(3).

Defendant served form interrogatories (“FROG”), special interrogatories (“SROG”), and demand for production and inspection of documents (“DPID”) on Plaintiff via mail on August 31, 2017. Plaintiff did not provide timely responses. Defendant filed three motions to compel Plaintiff’s responses to the FROG, SROG, and DPID. Defendant served the motion on Plaintiff by mail on January 3, 2018. On January 31, 2018, the Court granted Defendant’s motions to compel and ordered Plaintiff to serve verified responses to the FROG, SROG, and DPID without objection within 20 days of notice of the order. (Siegel Decl., ¶ 4; Exh. A.) At the hearing on January 31, 2018, the Court also ordered Plaintiff and his counsel to pay Defendant sanctions of $630.00 within 20 days of notice of the order. (Mot., Exh. A.) Defendant served notice of the January 31, 2018 order via mail on Plaintiff on February 16, 2018.

Plaintiff has since served discovery responses on Defendant, but these responses were unverified. (Siegel Decl., ¶ 6.) Defendant contacted Plaintiff and requested verifications, but as of the filing date of this motion, no verifications have been provided. (Id. at ¶ 8.) Plaintiff and his counsel have also failed to pay the sanctions ordered by the Court.

Striking Plaintiff’s complaint is a harsh penalty. Terminating sanctions are only appropriate following the imposition of lesser, ineffective sanctions. However, Defendant has shown that Plaintiff was given notice of the Court’s January 31, 2018 ruling, and Plaintiff nonetheless has failed to provide verified responses and failed to pay the sanctions ordered by the Court. “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Thus, the unverified responses provided by Plaintiff are not sufficient to show compliance with the Court’s order.

The court finds that Plaintiff’s failure to serve verified responses and pay sanctions amounts to willful disobedience of its order. Despite failing to appear at the January 31, 2018 hearing, Plaintiff was properly notified of the order. Furthermore, although Plaintiff was properly served with the instant motion, he has failed to file any opposition, leading this court to conclude that Plaintiff has no meritorious arguments. Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797. The Court notes that Plaintiff has been non-responsive, thereby thwarting Defendant’s ability to prepare for trial. Although terminating sanctions are a harsh penalty, Defendant has demonstrated that Plaintiff’s compliance with the court’s orders cannot be achieved through lesser sanctions. Therefore, the motion for terminating sanctions against Plaintiff is granted. However, the court finds that an order for additional monetary sanctions would be futile, and, in any event, a terminating sanction is sufficient. Therefore, the court declines to award further monetary sanctions.

Conclusion and Order

Defendant’s request for terminating sanctions is granted. Plaintiff’s complaint is dismissed. Defendant’s request for monetary sanctions is denied.

All parties should note that the hearing on this motion and all future hearings will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order and file proof of service of such within ten days.