2017-00213633-CU-WT

Nigel Hutton vs. Brandon Ellis

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Wagner, Joshua B.

Defendant Systems Paving, Inc.’s (“Defendant”) motion for terminating sanctions is UNOPPOSED and is GRANTED.

In this employment action, Defendant propounded written discovery on plaintiff Nigel Hutton (“Plaintiff”) on September 14, 2017. (Estes Decl. ¶ 2.) After multiple extensions were granted, the discovery responses were due on March 12, 2018. (Estes Decl. ¶¶ 3 -7.)

On February 28, 2018, this Court granted Plaintiff’s counsel’s motion to be relieved as counsel. (ROA 33.) Defendant then sent a new meet and confer letter to Plaintiff himself regarding the outstanding discovery, but never received a response. (Estes Decl. ¶¶ 10-11.) Defendant then sent a second meet and confer letter. (Estes Decl. ¶ 12.) After receiving no response, Defendant filed a motion to compel and deem matters admitted.

On July 10, 2018, the Court granted Defendant’s unopposed motion to compel Plaintiff to serve responses to Defendant’s form interrogatories and to deem matters admitted. (ROA 44.) The Court ordered Plaintiff to provide responses by July 24, 2018, and to pay sanctions related to the motion to deem matters admitted. Defendant gave Plaintiff notice of this order. (Estes Decl. ¶ 16.) Defendant sent further correspondence to Plaintiff to discuss potential dismissal of this matter, but never received a response. (Estes Decl. ¶ 17.) To date, Plaintiff has not provided any discovery responses or paid the ordered sanctions. (Estes Decl. ¶¶ 18-19.) Defendant also contends it has conducted a skip trace for Plaintiff and sent all of the discovery and related Court orders to a possible alternate mailing address.

Defendant contends Plaintiff’s failure to comply with this Court’s discovery order and Plaintiff’ total lack of participation in this matter warrants terminating sanctions.

For misuse of the discovery process, including as is the case here, disobeying a court order to provide discovery, the Court may impose issue, evidence, terminating, or monetary sanctions. (See, e.g. Code of Civil Procedure §§ 2023.010(d) and (g),

2023.030(a-(d).) In ordering terminating sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal.App.4th 967, 991-992.)

The Court may impose sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the Court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 793.) In ordering terminating sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal. App. 4th 967, 991-992.)

Here, it appears Plaintiff has intentionally ignored the Court’s order and his discovery obligations. Plaintiff has failed to provide any responses to Defendant’s discovery or to respond to Defendant’s meet and confer efforts. It appears Plaintiff has abandoned the

prosecution of this action. Plaintiff’s failure to respond to discovery and failure to comply with the Court’s order constitutes misuse of the discovery process. (Code Civ. Proc. §§ 2023.010(d), (g).) Plaintiff also failed to oppose the underlying motion to compel as well as the instant motion. Under these circumstances, the Court finds that a terminating sanction is warranted.

The motion for terminating sanctions is GRANTED.

Defendant has indicated the incorrect address in its notice of motion. The correct address for Department 53 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Defendant shall notify Plaintiff immediately.

Defendant shall submit a formal order and judgment of dismissal for the Court’s signature pursuant to CRC Rule 3.1312.