Judge Deirdre Hill, Case 21STCV18117 2023-03-15 Tentative Ruling

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Motion For Terminating Sanctions to Strike Defendant’s Answer and Have Default Entered Against Defendant

The motion is GRANTED. The court orders defendant’s first amended answer STRICKEN, and default issued against defendant.

On May 13, 2021, plaintiff Melinda Lou Minkus filed a complaint against defendant Rodnei Da Silva Lopez for motor vehicle negligence. Plaintiff alleges she was lawfully and properly crossing the north crosswalk of Monterey Boulevard heading westbound on Pier Avenue in the City of Hermosa Beach, California, when defendant negligently drove his motor vehicle into plaintiff’s person.

Between November 15 and November 17, 2021, plaintiff filed four motions to compel defendant’s further responses to plaintiff’s form interrogatories, special interrogatories, requests for admission, and request for production of documents.

On February 25, 2022, the court granted plaintiff’s four motions to compel further responses and ordered defendant to serve supplemental responses to plaintiff’s written discovery within 10 days.

On March 18, 2022, plaintiff filed a motion to strike defendant’s answer and/or for the imposition of issue and evidentiary sanctions for defendant’s failure to comply with the court’s February 25, 2022 discovery order and for additional monetary sanctions against defendant and his counsel of record.

On April 20, 2022, the court granted plaintiff’s motion for the issuance of monetary sanctions, awarding $1,160.00 in sanctions against defendant (client only), and continued hearing upon the remainder of plaintiff’s motion to May 24, 2022, ordering the parties to file supplemental briefing.

On May 24, 2022, the court granted plaintiff’s motion to strike defendant’s answer, and effectively ordered defendants 1st, 2nd, 3rd, 4th, 6th, and 7th affirmative defenses within defendant’s first amended answer be stricken as a form of issue and/or evidence sanctions.

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . ¶(d) The court may impose a terminating sanction by one of the following orders: . . . ¶(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.” CCP § 2023.030, subd. (d)(1) (italics added). A “misuse of the discovery process” is defined by Code of Civil Procedure section 2030.010 as including “[f]ailing to respond or to submit to an authorized method of discovery”¿ and “[d]isobeying a court order to provide discovery.”¿ CCP § 2023.010, subd. (d), (g).¿

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[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.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted). “Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.”¿ Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.¿ The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.¿ Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, fn. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

Plaintiff moves for an order striking defendant’s operative first amended answer and entering default against defendant on the ground defendant has failed to obey a plethora of orders issued by the court, including, but not limited to, an order compelling defendant’s service of supplemental responses to plaintiff’s written discovery, an order compelling defendant’s payment of monetary sanctions to plaintiff, an order requiring defendant’s participation in private mediation, and an order requiring plaintiff’s attendance during a mandatory settlement conference. Plaintiff contends terminating sanctions by way of striking defendant’s first amended answer and entering default against defendant is warranted as defendant habitually failed to obey the court’s discovery, and other, orders.

Following review of the moving, opposing, and reply papers, the court concludes terminating sanctions may be issued against defendant, pursuant to Code of Civil Procedure section 2023.030, subdivision (d)(1). CCP § 2023.030, subd. (d)(1). The court concludes the evidence demonstrates defendant has repeatedly engaged in the “misuse of the discovery process”, as defined by Code of Civil Procedure section 2023.010, and therefore, terminating sanctions by way of striking defendant’s operative first amended answer and entering default against defendant is justified. CCP §§ 2023.010, subd. (g), 2023.030, subd. (d)(1). Specifically, Defendant has engaged in a “misuse of the discovery process” by “[d]isobeying a court order to provide discovery”. CCP § 2023.010, subd. (g). The court observes, on February 25, 2022, the court issued an order granting plaintiff’s four motions to compel further responses and ordering defendant to serve supplemental responses to plaintiff’s four sets of written discovery no later than March 7, 2022. Glugoski Decl., Ex. 2. While over one year has lapsed since the issuance of the court’s order, defendant has repeatedly failed to serve supplemental responses in compliance with the court’s order. Id., ¶ 7. Furthermore, the court observes defendant has failed to serve a supplemental response in compliance with the court’s order despite the fact defendant’s failure to respond has been the subject of a previous motion for issue, evidentiary, and monetary sanctions. Id., ¶ 11. Defendant has had ample time and opportunity to comply with the court’s order, to no avail. According, the court concludes the submitted evidence unambiguously demonstrates defendant has repeatedly engaged in the “misuse of the discovery process”, as defined by Code of Civil Procedure section 2023.010, by “[d]isobeying a court order to provide discovery”, and therefore, terminating sanctions by way of striking defendant’s operative first amended answer and entering default against defendant is justified. CCP § 2023.010, subd. (g).

Furthermore, the court concludes, while terminating sanctions “‘should not be issued lightly’”, the substantive and procedural history of this action demonstrate “‘less severe sanctions would not produce compliance with the discovery rules . . . .’” Los Defensores, 223 Cal. App. 4th at 390. As alluded to above, plaintiff previously filed a motion for evidentiary, issue, and monetary sanctions against defendant, arguing the aforementioned sanctions are warranted against defendant due to defendant’s failure to serve supplemental responses in compliance with the court’s February 25, 2022 order. Glugoski Decl., ¶¶ 8-12, Ex. 3-4. Although the court granted plaintiff’s motion, issuing evidentiary, issue, and monetary sanctions against defendant, defendant has still failed to comply with the discovery rules by serving a supplemental response upon plaintiff. Additionally, the court finds defendant’s failure to comply with the discovery rules is willful. Defendant’s counsel represents that defendant is presently unwilling to participate in this litigation. Hodson Decl., pp. 2-8. Defendant has failed to maintain contact with his counsel of record and, when defense counsel’s private investigator ultimately located defendant and informed him his participation in this litigation was required in order to eliminate the risk of “being sanctioned” defendant stated, “he was not going to cooperate” and “would not sign anything” in connection with this action. Id., pp. 6:2-7, 8:7-10. The court may reasonably deduce defendant understood his obligation to participate in his defense and provide discovery responses, but has admittedly stated he would not cooperate in this action. Ibid.

Based on the foregoing, the court concludes terminating sanctions may be appropriately issued against defendant by way of striking defendant’s answer and entering default against defendant. The motion is GRANTED.