Judge: Anne Kiley, Case: 20STCV46753, Date: 2024-02-16 Tentative Ruling

Case Number: 20STCV46753    Hearing Date: February 16, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            Introduction

On December 7, 2020, plaintiff Eduardo Perez Favela filed this action against defendants Sahak Kazandjian, Ani Madlen Kazandjian, and DOES 1 through 100, inclusive, for injuries arising out a motor vehicle accident that occurred on December 15, 2018. 

On December 14, 2023, the Court ordered plaintiff to serve verified responses, without objection, to defendant’s Form Interrogatories, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One; and pay monetary sanctions within twenty (20) days.  A Notice of Ruling was served on Plaintiff.  However, to date, Plaintiff has not complied with the Court’s order.

II.          Legal Standards

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 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 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 Civ. Proc., § 2023.010, subds. (d), (g).)  A terminating sanction may be imposed by an order dismissing part or all the action.  (Code Civ. Proc., § 2023.030, subd. (d)(3).) 

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  If a lesser sanction fails to curb abuse, a greater sanction is warranted.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.)  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. Super. Ct. for L.A. 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.  (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Super. Ct. of L.A. County (1966) 244 Cal.App.2d 605, 610-611.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.  (Evid. Code, §§ 500, 605; Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250.)

III.        Discussion

It is undisputed that plaintiff did not serve responses to written discovery and disobeyed a court order to do so. Defendant served a Notice of Ruling and the instant motion on plaintiff. Plaintiff’s counsel states that he will serve compliant discovery responses before the hearing date of the instant motion.  (Decl. Ghahreman, ¶ 3.) Based on this, he argues that noncompliance is not willful.

 The Court concludes plaintiff knew of his discovery obligations, knew of the court order compelling his compliance, knew his case was at risk of being dismissed, and willfully failed to comply with the Court’s order.  Nonetheless, if, as represented, Plaintiff has served complaint discovery responses prior to the hearing on the instant motion, the Court will be hard-pressed to find that lesser sanctions will not curb the discovery abuse at issue.  Accordingly, the Court will hear from the parties regarding what responses, if any, have been served.

                                                         Dated this 16th day of February 2024