Case Number: BC611050 Hearing Date: November 28, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

MARIA S. BECERRA,

Plaintiff,

v.

CALABEE’S INC.,

Defendant.

Case No.: BC611050

Hearing Date: November 28, 2018

[TENTATIVE] order RE:

defendant’s motion for Terminating Sanctions; MONETARY SANCTIONS

Defendant Calabee’s Inc (“Defendant”) has filed a motion for terminating sanctions against Plaintiff Maria S. Becerra (“Plaintiff”) for Plaintiff’s failure to obey a July 25, 2018 Court order compelling his objection-free verified responses to Defendant’s discovery. Plaintiff has not filed any opposition.

Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Pursuant to CCP Section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(CCP § 2023.030(d).)

Discussion

Defendant moves for terminating sanctions against Plaintiff pursuant to CCP section 2023.030(d)(3).

On July 25, 2018, the Court granted Defendant’s motion to compel Plaintiff’s verified responses to written discovery without objection. (Almodovar Decl., ¶ 4; Ex. A.) At the hearing on July 25, 2018, the Court also ordered Plaintiff and his counsel to pay Defendant sanctions of $440.00 within 30 days of notice of the order. (Mot., Ex. A.) Defendant served notice of the July 25, 2018 order via facsimile on Plaintiff on July 27, 2018.

Pursuant to CCP section 1013(c), “service by facsimile transmission shall be permitted only where the parties agree and a written confirmation of that agreement is made.” There is no indication that the parties had such an agreement. Defendant has not provided any such written confirmation of an agreement by the parties to accept service by facsimile transmission. Thus, service of the notice of ruling was improper as it was effected only by facsimile. The Court also notes that from reviewing the minute order from the motion to compel hearing, Plaintiff’s counsel did not make an appearance at the hearing. Thus, the record is insufficiently clear as to whether Plaintiff was given sufficient notice of the Court’s July 25, 2018 ruling.

Thus, the Court denies Defendant’s motion for terminating sanctions without prejudice. If Defendant wishes to renew its motion, Defendant must comply with CCP sections 1005 and 1013 in serving Plaintiff with the Court’s July 25, 2018 ruling on the motion to compel. If Plaintiff fails to abide by the Court’s order after proper service, Defendant may renew its motion.

Conclusion and Order

Defendant’s request for terminating sanctions is denied without prejudice.

Defendant is ordered to provide notice of this order and file proof of service of such within ten days.

DATED: November 28, 2018 ___________________________

Elaine Lu

Judge of the Superior Court