Defendant Marco Transport, Inc.’s Motion for Terminating Sanctions 

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

BACKGROUND

On September 22, 2020, Plaintiff Ivory Wilborne (“Plaintiff”) filed this action against Defendants Marco Transport, Inc. (“Marco”) and Suren Reyes Martinez (“Martinez”) for motor vehicle negligence.

On May 21, 2021, Marco filed an answer.

On August 25, 2022, Marco filed a Motion for Terminating Sanctions to be heard on October 11, 2022.

Trial is currently set for November 30, 2022.

PARTY’S REQUEST

Marco requests the Court issue terminating sanctions against Plaintiff, as well as $645.00 in monetary sanctions.

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 (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)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

Marco served Plaintiff with discovery on September 2, 2021. Marco also has noticed Plaintiff’s deposition three separate times—Plaintiff has never appeared for any of the deposition, nor has Plaintiff offered any other available dates. After Plaintiff failed to respond to discovery, Defendant filed motions to compel discovery responses and Plaintiff’s deposition. The Court granted the motions, ordering Plaintiff to serve responses by August 1, 2022, and appear for her deposition by July 28, 2022. Plaintiff has failed to serve any responses or schedule a deposition date. Parties attempted to meet and confer, with Plaintiff’s counsel saying he cannot contact Plaintiff.

The Court finds grounds for terminating sanctions. Plaintiff has failed to abide by the Court’s orders and provide discovery. There is no indication that less severe sanction would produce compliance with discovery rules. The Court grants the motion.

The Court awards monetary sanctions of $645 (3 hrs x $195 +$60). (Code of Civ. Proc. §§ 2023.010(d), 2023.030(a), and 2025.450(h).) 

CONCLUSION

Defendant Marco Transport, Inc.’s Motion for Terminating Sanctions is GRANTED.  This action is dismissed as to Marco Transport, Inc. with prejudice.  (Code of Civ. Proc. § 2023.030(d)(3).)

Defendant Marco Transport, Inc.’s Request for Monetary Sanctions is GRANTED. The Court awards monetary sanctions of $645 against Plaintiff due November 14, 2022.

Defendant is ordered to give notice of this ruling.