Case Number: BS172378 Hearing Date: October 19, 2018 Dept: 3

WAWANESA GENERAL INS. CO.,

Plaintiff(s),

vs.

DUFF V. MACDONALD,

Defendant(s).

CASE NO: BS172378

[TENTATIVE] ORDER DENYING MOTION FOR TERMINATING SANCTIONS; IMPOSING MONETARY SANCTIONS

Dept. 3

1:30 p.m.

October 19, 2018

1. Background Facts

Duff MacDonald made a claim on his father’s insurance policy with Wawanesa General Insurance Company for damages arising out of an automobile accident. MacDonald and Wawanesa were unable to resolve the claim, and agreed to submit the matter to arbitration. On 5/31/18, the Court granted Wawanesa’s motion to appoint an arbitrator. On 7/09/18, the Court appointed the Honorable Eli Chernow, Ret. as the arbitrator of the dispute.

Also on 5/31/18, the Court heard and granted Wawanesa’s motion to compel MacDonald to respond to supplemental interrogatories. The Court also imposed sanctions.

2. Motion for Terminating Sanctions

At this time, Wawanesa moves for a terminating sanction dismissing the parties’ arbitration. Wawanesa provides evidence that MacDonald has not complied with the Court’s order requiring him to respond to supplemental interrogatories.

The court’s power to resolve discovery disputes and issue appropriate orders includes the power to impose discovery sanctions. Miranda v. 21st Century Ins. Co. (2004) 117 CA4th 913, 928-929. The Miranda Court held that the trial court did not abuse its authority by dismissing the parties’ uninsured motorists’ arbitration as a sanction for the insured’s refusal to release medical records, in violation of a court order to do so. Notably, the superior court has exclusive jurisdiction to hear and rule on discovery matters arising in a uninsured motorists’ arbitration. The arbitrator has no such power. Id. at 924-926.

MacDonald timely filed opposition to the motion. MacDonald argues terminating sanctions should not be imposed because he timely and properly responded to all other discovery, and his failure to timely respond to the supplemental discovery at issue was caused by ongoing health problems coupled with the sudden loss of his father. He indicates he has provided verified responses at this time.

Wawanesa, in reply, argues that terminating sanctions are appropriate even though verified responses have been received because they were months overdue (served 10/5/18 but due 6/15/18 under order of 5/31/18) and the verification was a copy rather than an original as required. Petitioner cites several cases to support its position. It also argues the opposition should be disregarded due to the lack of authority submitted with the points and authorities. The Court finds the discussion in the points and authorities sufficient to make a determination of the issues presented. The Court has reviewed the cases cited by Wawanesa, and finds the abuses at issue therein were much more serious and ongoing than serving late discovery responses. Moreover, Respondent has submitted evidence of extenuating circumstances which contributed to his delay in complying with the order. Because verified (albeit a copy) responses have been provided at this time, a terminating sanction would be unduly harsh, and the motion is denied.

The Court is, however, inclined to impose additional monetary sanctions at this time. CCP §2023.030. Wawanesa seeks imposition of sanctions in the total amount of $1671.50 against MacDonald and his attorney of record. Wawanesa’s attorney bills at the rate of $155/hour. The Court awards three hours to prepare the motion, one hour to prepare the reply, and one hour to appear at the hearing, plus the filing fee. MacDonald and his attorney of record, jointly and severally, are ordered to pay sanctions to Wawanesa, by and through its attorney of record, in the total amount of $835 (5 x $155 + $60) within twenty days.

Wawanesa is ordered to give notice.