Judge: Daniel M. Crowley, Case: 20STCV48789, Date: 2022-12-16 Tentative Ruling

Case Number: 20STCV48789    Hearing Date: December 16, 2022    Dept: 28

Defendant American Guard Services, Inc.’s Motion for Terminating Sanctions 

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

BACKGROUND

On December 22, 2020, Plaintiff Jose Sanabria (“Plaintiff”) filed this action against Defendants Food for Less of Southern California, Inc. (“Food for Less”) and The Kroger Co. (“Kroger”) for general negligence and premises liability. Plaintiff later amended the complaint to include Defendant American Guard Services, Inc. (“AGS”).

On June 28, 2021, AGS filed an answer.

On November 18, 2022, AGS filed a Motion for Terminating Sanctions to be heard on December 16, 2022.

The trial date currently set for April 20, 2023.

PARTY’S REQUEST

AGC requests the Court issue terminating sanctions against Plaintiff and impose sanctions totaling $1,900.00 on Plaintiff.

LEGAL STANDARD

Code of Civil Procedure §§ 2030.300(e), 2031.310(i), 2031.320(c), 2033.290(3) and 2023.030 all give the Court the court the discretion to terminate a case when a party has disobeyed a court order compelling discovery responses.  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 August 9, 2021, AGS propounded discovery on Plaintiff; Plaintiff did not serve timely discovery responses. AGS brought forward motions to compel, which the Court granted on October 27, 2022. Plaintiff was ordered to serve discovery responses within 10 days of the hearing on the motion. Plaintiff has yet to serve any discovery responses. The Court finds a basis for terminating sanctions, as there is no indication that any lesser order would result in Plaintiff producing discovery.

AGS requests monetary sanctions totaling $1,900.00, based upon 6.5 hours of attorney’s work at a rate of $200.00 per hour one $60.00 filling fee. The Court believes AGS wrongfully calculated their sanctions, and instead request sanctions totaling $1,360.00. Attorney’s work is based on 3.5 hours drafting, 2 hours replying and 1 hour attending. As Plaintiff did not oppose the motion, the Court awards sanctions based on 4.5 hours of attorney’s work. Sanctions total $960.00.

CONCLUSION

Defendant American Guard Services, Inc.’s Motion for Terminating Sanctions is GRANTED pursuant to Code of Civil Procedure §§ 2030.300(e), 2031.310(i), 2031.320(c), 2033.290(3) and 2023.030.  AGS is dismissed, with prejudice.

Defendant American Guard Services, Inc.’s Request for Sanctions is GRANTED. Plaintiff is ordered to pay $960.00 in sanctions to AGS within 30 days of the hearing on the motion.