Judge: Deirdre Hill, Case: 21STCV18117, Date: 2023-03-22 Tentative Ruling

Case Number: 21STCV18117    Hearing Date: March 22, 2023    Dept: M

Hearing Date:                         March 22, 2023          

Moving Parties:                      Plaintiff Melinda Lou Minkus           

Responding Party:                  Defendant Rodnei Da Silva Lopez    

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

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED.

BACKGROUND

            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 ten 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.

LEGAL AUTHORITY

“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).

DISCUSSION

            Plaintiff Melinda Lou Minkus moves for an order striking defendant Rodnei Dasilva Lopes’ 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, February 25, 2022 order compelling defendant’s service of supplemental responses to plaintiff’s written discovery by March 7, 2022, an April 20, 2022 order compelling defendant’s payment of monetary sanctions to plaintiff, a May 24, 2022 order requiring defendant’s participation in private mediation, and a January 27, 2023 order requiring plaintiff’s attendance during a mandatory settlement conference.  Plaintiff notes that although on May 24, 2022, the court granted plaintiff’s motion for issue/evidentiary sanctions, striking all of defendant’s affirmative defenses, the FAA with a general denial remains.

Plaintiff argues 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. 

The court notes that the April 20, 2022 order, May 24, 2022 order, and January 27, 2023 order are not discovery orders.  Whether defendant failed to comply with the order to pay additional monetary sanctions is not relevant to the court’s determination as to whether terminating sanctions¿should be imposed, and the court has not considered that factor in making its determination.  A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 610, 615.¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, Code of Civil Procedure §§ 680.010, et seq.  Id. at 615.  

The court notes that it has already imposed sanctions—monetary, issue, and evidence sanctions (by striking the 1^st, 2^nd, 3^rd, 4^th, 6^th, and 7^th affirmative defenses in the FAA) via three orders—for defendant’s misuse of the discovery process for disobeying the February 25, 2022 order to serve supplemental responses.  The court finds that further sanctions are not warranted. 

The motion is thus DENIED.

            Plaintiff is ordered to give notice of ruling.