Judge Audra Mori, Case 21STCV25370 2022-12-08 Tentative Ruling

Plaintiff Irma Gallegos Hernandez (“Plaintiff”) filed this action against defendants Ruth McCormack, Christina Hernandez, Olga Resendiz, Celia Lopez, and Pablo Fernando Hernandez seeking damages relating to the death of Decedent Jose Luis Hernandez (“Decedent”). The operative First Amended Complaint (“FAC”) alleges that defendants as landlords and owners of the property located at 11520 E. Perkins Avenue, Santa Fe Springs, CA 90606, breached their duty by failing to maintain the property in a habitable condition, control the power lines, and failed to use the property in the manner for its intended use. Plaintiff alleges the breach caused the property to be engulfed in flames, burning Decedent to death.

Defendant Ruth Ann McCormack as trustee of the Ruth Ann McCormack Family Trust (“Defendant”), erroneously sued as Ruth McCormack, moves 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 and failing to comply with the Court’s September 29, 2022 order compelling initial responses to the subject discovery. Defendant further requests monetary sanctions of $1,185.00 against Plaintiff. No opposition to the motion has been received, and on November 30, 2022, Defendant filed a notice of non-opposition to the motion.

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, on September 29, 2022, Defendant’s motions to compel responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents (“RPDs”), set one, against Plaintiff were granted. Plaintiff was ordered to serve verified responses to the discovery requests within 20 days. Defendant avers that despite serving Plaintiff with the order, to date, Plaintiff has failed to serve verified responses to any of the discovery requests. Defendant contends that Plaintiff willfully disobeyed the Court’s order and made no indication she intends to comply with her discovery obligations.

Defendant’s evidence shows Plaintiff failed to comply with the discovery requests, and Plaintiff failed to comply with the Court’s September 29, 2022 order. Moreover, a brief review of the prior motions reveals that the discovery at issue goes to the crux of Plaintiff’s claim, 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.

Based on the foregoing, terminating sanctions are imposed at this time. Plaintiff’s action against Defendant Ruth Ann McCormack as trustee of the Ruth Ann McCormack Family Trust is hereby dismissed.

Defendant also seeks monetary sanctions in connection with this motion pursuant to CCP §§ 2023.030(a), 2030.290(c) and 2031.300(c). These provisions state in relevant part, “If a party … fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction … In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7…” Thus, the imposition of terminating sanctions does not, standing alone, make the imposition of monetary sanctions unjust. (See Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 76-78.) Indeed, it may be an abuse of discretion to fail to award any monetary sanctions when unjustified discovery misconduct, such as disobeying a court order, has occurred. Id.; CCP § 2023 (g).

Here, Defendant is awarded one hour for preparing the motion at the reasonable rate of $200 per hour. Further, Defendant is awarded the motion filing fee of $60.00 as costs.

Sanctions are sought and imposed against Plaintiff, who is in pro per. Plaintiff is ordered to pay sanctions to moving Defendant, by and through counsel of record, in the total amount of $260.00, within twenty days.

Hon. Audra Mori

Judge of the Superior Court