Case Number: BC648285 Hearing Date: April 17, 2018 Dept: 7

ORDER RE: PLAINTIFF’S MOTION FOR TERMINATING SANCTIONS; MOTION DENIED, MONETARY SANCTIONS IMPOSED

On January 25, 2017, Plaintiff Thuong Thi Lam (“Plaintiff”) filed this action against Defendant Nguong Eang (“Defendant”) for motor vehicle and general negligence relating to a June 2, 2015 vehicle versus bicycle accident.

On January 31, 2017, Plaintiff served Defendant with the Complaint by substitute service at a residence in Long Beach, California. (Declaration of Harry Nalbandyan, ¶¶ 4, 5.) On February 21, 2017, Plaintiff served Set One of written discovery requests on Defendant at the same address. (Nalbandyan Decl., ¶ 6.) After receiving no responses, Plaintiff filed motions to compel deem admitted, which were granted by the court on July 6, 2017. (Nalbandyan Decl., ¶ 9.) On July 11, 2017, Defendant filed his Answer. (Nalbandyan Decl., ¶ 10.) On July 12, 2017, pursuant to defense counsel’s request, Plaintiff served a Notice of Ruling of the court’s July 6, 2017 Order. (Nalbandyan Decl., ¶ 11.)

On March 26, 2018, the Court granted Defendant’s motion to withdraw the July 6, 2017 deemed admitted order, based on Defendant’s statements that he was never served with the summons, complaint, or Plaintiff’s initial discovery requests.

On January 16, 2018, Plaintiff’s counsel contacted Defendant’s new attorney regarding the status of Defendant’s compliance with the July 6, 2017 Order. (Nalbandyan Decl., ¶ 14.) Defendant has failed to serve responses to discovery in compliance with the Court’s Order, and Plaintiff moves for terminating and monetary sanctions.

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code of Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code of Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code of Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code of Civ. Proc., § 2023.030, subd. (d)(3).) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party on whom the interrogatories were served has the burden of showing that the failure to respond was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

Defendant’s counsel was served with the Notice of Ruling granting Plaintiff’s motions to compel responses. It is undisputed that Defendant knew of the Court’s July 6, 2017 Order, had the ability to comply, and failed to serve timely responses in accordance with that Order. However, defense counsel avers that since associating as counsel in this case, he has endeavored to comply with Defendant’s discovery obligations. (Declaration of Hamed Amiri Ghaemmaghami, ¶ 4.) Counsel states communication with Defendant is limited by Defendant’s limited knowledge of English, and that he has had to communicate through Defendant’s sons and enlist the services of an investigator to complete the necessary discovery responses. (Ghaemmaghami Decl., ¶ 4.) Counsel anticipated he would serve Defendant’s discovery responses on April 4, 2018. (Ghaemmaghami Decl., ¶ 18.)

The Court finds Defendant has not willfully disobeyed the Court’s Order compelling responses such that terminating sanctions are warranted. However, the Court will impose monetary sanctions against Defendant and Defendant’s counsel of record, jointly and severally since the lack of timely discovery responses necessitated the bringing of this motion. (Code of Civ. Proc., §§ 2023.030, subd. (a); 2030.010, subd. (g).)

Plaintiff is ordered to pay the sum of $760.00, for two hours preparing this Motion and attending the hearing, at Plaintiff’s counsel’s rate of $350.00 per hour and $60.00 filing fees, to be paid to Plaintiff’s counsel within twenty (20) days of the date of this Order.

Moving party is ordered to give notice of this ruling.