Case Number: BC555793 Hearing Date: July 21, 2016 Dept: 40

This is a personal injury action involving a truck accident.

On June 24, 2016, Plaintiff filed the instant unopposed motion for a terminating sanction in the form of striking Defendant Hovig Mkhitarian’s answer and entering default judgment.

Failure to Tab Exhibits

Plaintiff’s counsel should note: “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f).

The Court’s Authority to Impose Terminating Sanctions

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 (imposing terminating sanctions 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 (imposing terminating sanctions when party violated single discovery order and several discovery statutes).

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. See, e.g., CCP § 2031.300(c) (requests for production of documents); CCP § 2023.030 (interrogatories). The statute provides that the court “may make those orders that are just” if a party fails to obey prior orders. Therefore, which of the various sanctions, if any, are imposed lies entirely within the court’s discretion. Generally, before granting terminating sanctions, courts should usually grant lesser sanctions first. It is only where a party persists in disobeying court orders that the ultimate sanction of dismissing the action or entering default judgment is justified. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771. Sanctions for failure to comply with a court order are allowed only where the failure was willful. See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Valbona v. Springer (1996) 43 Cal.App.4th 1525.
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, supra, 84 Cal.App.3d at 787. A “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” Id. at 787-788. 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, 84 Cal.App.3d 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.

Here, on May 2, 2016, the Court granted Plaintiff’s motion to compel, ordered Mkhitarian to appear at deposition, pay $2,449.95 in monetary sanctions, and provide written discovery responses (to a second set of RFAs and special interrogatories) within 30 days, and ordered plaintiff to give notice. Lotfi Decl. ¶ 8, Exh. 7; 5/2/16 Minute Order.
Mkhitarian failed to appear for his re-noticed deposition. Lotfi Decl. ¶ 10, Exh. 9.
Although not stated in counsel’s declaration, the moving papers indicate Mkhitarian also failed to provide written discovery responses. MOT 2:22.
According to the notice of entry of order filed May 27, 2016, Plaintiff served the notice, which included a copy of the May 2, 2016 minute order, on Mkhitarian by mail on May 27, 2016.
Problematically, however, Plaintiff re-noticed Mkhitarian’s deposition for May 25, 2016 and served the amended notice of deposition on May 4, 2016. Lotfi Decl. ¶ 10, Exh. 9.
Because Plaintiff served the notice of order after these dates, on May 27, 2016, it cannot be said that Mkhitarian was aware of the discovery orders and, therefore, did not willfully fail to comply with the order concerning his deposition. Deyo, supra, 84 Cal.App.3d at 787.
Additionally, plaintiff submits no evidence supporting the contention that Mkhitarian failed to provide written discovery responses or pay the monetary sanction. Because Plaintiff fails to demonstrate a willful violation, terminating sanctions may not be imposed. See R.S. Creative, Inc., supra, 75 Cal.App.4th at 495; Valbona, supra, 43 Cal.App.4th 1525.

The motion is DENIED without prejudice. Plaintiff to give notice.