Judge Audra Mori, Case 19STCV32713 2023-02-14 Tentative Ruling

Plaintiff Andres Rivas (“Plaintiff”) filed this action against Defendants Christopher Brine (“Christopher”) and Lou Ann Brine (“Lou Ann”) (collectively, “Defendants”) for damages relating to a motor vehicle accident.

Defendants move for terminating sanctions against Plaintiff dismissing Plaintiff’s complaint because of Plaintiff’s misuse of the discovery process by failing to serve responses to initial discovery served by Defendants and failing to comply with the Court’s November 8, 2022 order pertaining to Defendant Christopher’s motion to compel initial responses to the subject discovery. Defendants further request monetary sanctions of $1,740.00 against Plaintiff and Plaintiff’s counsel for bringing this motion. Any opposition to the motion was due on or before January 31, 2023. As of February 8, 2023, no opposition has been filed.

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "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." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "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, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

Here, Defendant Christopher’s motions to compel responses to special interrogatories, set one, form interrogatories, set one, and request for production of documents, set one, were granted against Plaintiff on November 8, 2022.[1] Plaintiff was ordered to serve verified responses to the discovery requests within twenty days. Defendants served notice of the order on Plaintiff on November 14, 2022. (Mot. Exh. 1.) To date, Plaintiff has not complied with the November 8, 2022 order by serving responses to Christopher’s discovery requests.

Defendants’ evidence shows Plaintiff has failed to comply with Christopher’s discovery requests, and Plaintiff failed to comply with the November 8, 2022 order. Lesser sanctions, thus, have been ineffective in getting Plaintiff to comply with Plaintiff’s discovery obligations. Moreover, a brief review of Christopher’s prior motions reveals that the discovery at issue goes to the crux of Plaintiff’s claims against Christopher, and therefore an issue or evidentiary sanction would be tantamount to a terminating sanction. Further, Plaintiff does not oppose this motion and appears to have abandoned the case.

However, as to Defendant Lou Ann, Defendants provide that Lou Ann’s motions to compel responses to form interrogatories, special interrogatories, and request for production of documents were granted on January 10, 2023, and the Court ordered Plaintiff to serve responses to Lou Ann’s discovery within twenty days. However, Defendants filed the instant motion on January 18, 2023, before the time for Plaintiff to respond to Lou Ann’s discovery expired. Consequently, to the extent that Defendants are requesting that Plaintiff’s complaint as to Lou Ann be dismissed, Defendants fail to show that Plaintiff failed to comply with any orders concerning discovery served on Plaintiff by Lou Ann.

Based on the foregoing, Defendants’ motion for terminating sanctions is granted in part. The motion is granted as to Christopher only. Plaintiff’s action against Christopher is hereby dismissed.

Defendants additionally request monetary sanctions of $1,740 pursuant to CCP § 2023.030(a) against Plaintiff for bringing this motion. Defendants are correct that the imposition of terminating sanctions does not make the imposition of monetary sanctions unjust. (See Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 76-78.) However, CCP § 2023.010 does not independently authorize the Court to impose monetary sanctions for misuse of discovery. (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504 [“award of monetary sanctions … based solely on [CCP §§] 2023.010 and 2023.030 without regard to any other provision of the Discovery Act, constituted an abuse of discretion because it was outside the bounds of the court's statutory authority.”].) Defendants does not otherwise identify any other sections Defendants are seeking sanctions under. Therefore, Defendant’s request for monetary sanctions is denied.

Hon. Audra Mori

Judge of the Superior Court

[1] The November 8, 2022 order further provided that Christopher’s requests for admissions, set one, were deemed admitted against Plaintiff for Plaintiff failure to respond to the requests.