Case Number: BC683023 Hearing Date: October 19, 2018 Dept: 4

Motion to Dismiss Plaintiff’s Action for Failure to Obey Court’s Orders and for Order Imposing Monetary Sanctions

The court considered the motion. No opposition was filed.

BACKGROUND

On November 13, 2017, plaintiff Odis Adaly Solis Funez filed a complaint against defendant Agustin Gonzalez Moreno for motor vehicle negligence based on an incident that occurred on November 14, 2015.

On July 20, 2018, the court granted defendant’s motions to compel discovery responses and to compel plaintiff to appear for his deposition.

On September 24, 2018, the court granted plaintiff’s counsel’s motion to be relieved as counsel.

The trial date is May 13, 2019.

DISCUSSION

Defendant requests that the court impose terminating sanctions and monetary sanctions against plaintiff for his failure to comply with the court’s order dated July 20, 2018.

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 § 2025.450(h) (depositions); § 2030.290(c) (interrogatories); § 2031.300(c) (demands for production of documents). CCP § 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP § 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating 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.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in

Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

On July 20, 2018, the court ordered plaintiff to serve responses to discovery requests within ten days and to appear for his deposition on July 31, 2018. According to defense counsel’s declaration, plaintiff has not served responses or appeared for his deposition.

The court finds that plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the court’s July 20, 2018 order by failing to serve discovery responses and to appear for his deposition. CCP §§ 2023.010(g), 2023.030. The court thus finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against plaintiff pursuant to CCP § 2023.030(d). The court denies defendant’s request for monetary sanctions because terminating sanctions are adequate.

The motion is GRANTED.

The court orders that plaintiff Odis Adaly Solis Funez’s complaint against defendant Agustin Gonzalez Moreno is dismissed. CCP § 2023.030(d)(3).

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 19, 2018

_____________________________

Christopher K. Lui

Judge of the Superior Court