Judge: Daniel M. Crowley, Case: 19STCV46599, Date: 2022-08-18 Tentative Ruling

Case Number: 19STCV46599    Hearing Date: August 18, 2022    Dept: 28

Defendant 99 Cents Only Stores LLC and Jerick Hacobian’s Motion for Terminating Sanctions

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On December 27, 2019, Plaintiff Stanley Waite (“Plaintiff”) filed this action against Defendants 99 Cents Only Stores LLC (“99 LLC”), 99 Cents Only Stores Laurel Canyon Inc. (“Laurel Canyon”) and Jerick Hacobian (“Hacobian”) for general negligence and premises liability.

On December 2, 2020, 99 LLC filed an answer. On December 28, 2020, Hacobian filed an answer.

On July 28, 2022, 99 LLC and Hacobian (“Moving Defendants”) filed a Motion for Terminating Sanctions to be heard on August 11, 2022. The Court continued the hearing on this motion to August 18, 2022. On August 10, 2022, Plaintiff filed an untimely opposition.

The trial date currently set for April 14, 2023.

PARTY’S REQUEST

Moving Defendants request the Court dismiss Plaintiffs’ complaint.

Plaintiff requests the Court deny the motion.

LEGAL STANDARD

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].)

DISCUSSION

On May 27, 2022, and May 31, 2022, Plaintiff was ordered to provide responses to Moving Defendants’ supplemental special interrogatories, supplemental form interrogatories, and supplement request for production within 30 days of the hearing on the motion. Plaintiff has yet to provide responses. The Court notes that Moving Defendants previous motions went unopposed, and that there is no indication of Plaintiff being an active participant in this case since November 10, 2020.

Plaintiff filed a tardy opposition noting that Plaintiff and Plaintiff’s counsel were unaware of the propounded discovery, the motions to compel, and the Court’s resultant orders from those hearings. According to the proof of service, all the above were served by electronic service to Plaintiff counsel’s email. Counsel has no explanation as to why he did not receive these emails, but states that Plaintiff has now provided verified responses to supplemental discovery and has satisfied the order for sanctions. As such, the Court does not find terminating sanctions appropriate at this time. The Court denies the motion.

CONCLUSION

Defendant 99 Cents Only Stores LLC and Jerick Hacobian’s Motion for Terminating Sanctions is DENIED.

Defendant is ordered to give notice of this ruling.