Case Number: BC594629 Hearing Date: June 25, 2018 Dept: 4

MOVING PARTY: Defendant Abbey Food & Bar

RESPONDING PARTY: Plaintiff Mehran Taavar

Motion for Terminating Sanctions

The court considered the moving papers and opposition.

BACKGROUND

On September 15, 2015, Plaintiff Mehran Taavar filed the instant complaint against Defendant Abbey Food & Bar for premises liability. Plaintiff alleges that on October 3, 2013 he was injured when a horizontal pole dislodged during a performance and hit him in the head at the Abbey.

On March 6, 2018, the Court granted defendant’s motion to compel (1) Special Interrogatories (Set Six), Requests for Production (Set Six), and Requests for Admission (Set

Four), in part. The Court ordered defendant to re-propound the granted requests with limitations as to time and with narrower definitions. Defendant served the amended requests on March 9, 2018 and plaintiff served his revised responses on April 27, 2018. Defendant contends the responses were insufficient in violation of the Court’s order.

LEGAL STANDARD

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP §2023.030, §2025.450(d) (depositions); §2030.290 (interrogatories); §2031.300(c) (requests for production of documents). Under CCP section 2023.101, misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery.

Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246. Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. Id. at 1244-1246 (discussing cases); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed when party repeatedly failed to comply with single discovery order); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on another ground in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed when party violated single discovery order and several discovery statutes).

In this context, willfulness does not require a wrongful intention. A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 787. A “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” Id. at 787-88. The party with the obligation to respond to discovery bears the burden of showing that the failure to respond or comply was not willful. Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal. App. 3d 250, 252-253.

A court is not required to impose sanctions in a graduated fashion, but may apply “the ultimate sanction” against a party who has persisted in refusing to comply with discovery obligations. Deyo, supra, at 793. “The unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal. App. 3d 520, 524.

DISCUSSION

Defendant argues plaintiff’s responses are in violation of the Court’s March 6, 2018 order because they (1) contain false information, (2) contain incomplete information, (3) demonstrate that Plaintiff did not make a good faith effort to obtain requested information, and (4) contain improper objections. Carlisle Decl., Exh. L-N.

Defendant contends that the information within the responses contradicts other information discovered in this case. Defendant further contends that plaintiff’s responses which are based on his inability to remember are deficient because he needed to investigate further prior to responding, and search through social media history.

Finally, defendant claims that plaintiff’s responses did not respond to the information requested because plaintiff did not include all identify information in responses. For example, in response to SI No. 171, which requested plaintiff to identify all car insurance providers in 10 years prior to the incident, plaintiff responded, “Geico Insurance.” Defendant contends this is an incomplete response in violation of the Court’s order because plaintiff did not object to or define Geico per its definition of ““IDENTIFY” when used in reference to any individual PERSON means state the full name, relationship to you, present address, telephone number, job position, present business affiliation, business address, telephone number, and e-mail address of the person to which the applicable interrogatory pertains, as well as the above information at the time of the INCIDENT, if different.” Defendant further contends plaintiff violated the Court’s order by failing to meet and confer with defendant or engage in an IDC.

Plaintiff opposes defendant’s motion contending “1) Plaintiff has complied with the Court’s Order of March 6, 2017; 2) Plaintiffs responses do not contain false information, and were provided after a good faith effort to obtain the requested information; 3) Plaintiff has met and conferred extensively on all discovery disputes; 4) Plaintiffs conduct has been appropriate and reasonable and does not constitute abuse of the discovery process: a. Plaintiffs responses are limited by his memory deficits; b. Plaintiff has fully complied with the Court’s order regarding social media; 5) Plaintiff has made repeated good faith attempts to cooperate with Defendant’s counsel, but Defendant unnecessarily motions the court and refuses to schedule an IDC despite

the Court’s order to do so and Plaintiffs willingness to participate.” Opposition, 2:1-11.

The Court reviewed plaintiff’s April 27, 2018 responses. The Court finds that plaintiff did not disobey the Court’s March 6, 2018 order because in accordance with the order he provided responses to discovery. If defendant believes that the responses were not truthful, it can impeach plaintiff at trial with contradicting information. Further, plaintiff has attempted to meet and confer with defendant.

The Court thus does not find it appropriate to impose a terminating sanction against plaintiff pursuant to CCP § 2023.030(d).

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 25, 2018

__________________________

Dennis J. Landin

Judge of the Superior Court