Judge: Audra Mori, Case: 19STCV39221, Date: 2023-01-13 Tentative Ruling

Case Number: 19STCV39221    Hearing Date: January 13, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Sherman Vickers (“Plaintiff”) filed this action against Defendant Maria Alexandra Vitakis (“Defendant”) for damages arising out of a motor vehicle accident. 

Defendant moves for terminating sanctions against Plaintiff dismissing Plaintiff’s complaint because of his misuse of the discovery process by failing to serve responses to initial discovery and failing to comply with the Court’s September 13, 2022 order pertaining to Defendant’s motion to compel initial responses to the subject discovery.  Alternatively, Defendant moves for issue or evidentiary sanctions against Plaintiff.  No opposition to the motion has been filed.[1] 

This matter was last heard on November 28, 2022, where the hearing was continued to January 13, 2023.  The parties were ordered to meet and confer regarding all outstanding issues on December 5, 2022, and Plaintiff was put on notice that any requests for relief were required to be brought via noticed motion and in compliance with CCP § 1005.  (Min. Order, Nov. 28, 2022.)  Defendant filed notice of the ruling with proof of service on Plaintiff on December 2, 2022.  To date, nothing further regarding the motion has been filed.  

The Court now rules as follows:

2. Motion for Terminating Sanctions

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).)  “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.) 

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, on September 13, 2022, Defendant’s motions to compel responses to form interrogatories, special interrogatories, and request for production of documents (“RPDs”), all set one, against Plaintiff were granted.  Plaintiff was ordered to serve verified responses to the discovery requests within 20 days.  Defendant asserts that to date, Plaintiff has failed to serve verified responses to any of the discovery requests.  Further, Defendant asserts that Plaintiff has impeded Defendant’s discovery efforts, and that Plaintiff has not provided Defendant with any information regarding Plaintiff’s claims. 

Defendant’s evidence demonstrates that Plaintiff failed to comply with Court’s September 13, 2022 order.  To date, there is no showing that Plaintiff has served any of the discovery responses on Defendant, which impedes Defendant’s ability to defend this case.  (Mot. Exh. A.)  Further, Plaintiff does not oppose this motion, so no reason is given for why Plaintiff has not complied with the Court’s order and Plaintiff’s discovery obligations, despite multiple opportunities to do so, including the most recent continuance of this motion from November 28, 2022, to January 13, 2023.  However, because lesser sanctions have not been shown to be ineffective, the Court finds the imposition of terminating sanctions unduly harsh at this time.  (Deyo, 84 Cal.App.3d at 793; Dept. of Forestry & Fire Protection, 18 Cal.App.5th at 191 (“terminating sanctions are to be used sparingly because of the drastic effect of their application.”].)  “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.”  (Dept. of Forestry & Fire Protection, 18 Cal.App.5th at 191 [But recognizing that terminating sanctions can be imposed as a first measure when record shows lesser sanctions would be ineffective].) 

Nevertheless, given Plaintiff’s failure to comply with the September 13, 2022 order, and Plaintiff’s apparent refusal to comply with his discovery obligations after filing this action, the Court finds the imposition of evidentiary sanctions appropriate.  The Court issues the following evidentiary sanctions:

(1) Plaintiff is precluded from presenting records from medical care providers relating to the subject accident;

(2) Plaintiff is precluded from presenting documents evidencing property damages that Plaintiff claims as a result of the accident; and

(3) Plaintiff is precluded from presenting any photographs, films, or documents that depict Plaintiff’s injuries alleged as a result of the accident.

Plaintiff is put on notice that further failure to comply with his discovery obligations may result in additional evidentiary, issue and/or terminating sanctions imposed against him.  Based on the foregoing, the motion is granted in part.  Evidentiary sanctions are imposed at this time against Plaintiff as outlined above.  

No monetary sanctions are requested, and none are awarded.

Defendant is ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 13^th day of January 2023