Judge Douglas W. Stern, Case 21STCV37489 2023-05-16 Tentative Ruling

Judge: Douglas W. Stern, Case: 21STCV37489, Date: 2023-05-16 Tentative Ruling

Case Number: 21STCV37489 Hearing Date: May 16, 2023 Dept: 68

Itai Ziv vs. Youval Ziv, et al.; Case No. 21STCV37489

Motion for Terminating Sanctions

Moving Party – Plaintiff Itai Ziv

Moving Party’s Position

Plaintiff Itai Ziv (Plaintiff) is requesting terminating sanctions against Defendants Youval Ziv and Pacific Holdings Partnership (Defendants) pursuant to CCP §§ 2023.010 and 2023.030. Plaintiff requests that the Court strike Defendants’ Answers, enter default, and allow Plaintiff to move for entry of default against Defendants.

Plaintiff brings this motion for the following reasons:

1) Defendants filed their respective Answers on January 31, 2022.

2) Plaintiff propounded Form Interrogatories, Special Interrogatories and Requests for Production on the Defendants on May 25, 2022. Defendants failed to provide any responses to the Written Discovery.

3) Plaintiff filed Motions to Compel Responses to the Written Discovery on January 9, 2023. Defendants did not file Oppositions and did not appear at the hearing.

4) Plaintiff's Motions were granted on March 21, 2023. The Court ordered Defendants to provide responses to the Written Discovery within 20 days, which was April 10, 2023. The Court also ordered sanctions against Defendants and their counsel of record in the amount of $2,570 to be paid within 45 days.

5) Defendants have not served responses to the Written Discovery as ordered by the Court.

6) Plaintiff also served a set of Requests for Admissions on Defendants on March 6, 2023. Defendants have not responded to these Requests.

7) In addition to ignoring their obligation to respond to written discovery, Defendants have failed to appear for their depositions noticed by Plaintiff. Defendants also failed to appear at their noticed depositions on March 14 and March 15, 2023, and Plaintiff has filed motion to compel the depositions.

8) Defendants appeared to have intentionally and willfully disregarded their obligations to participate in discovery. Defendants have been entirely non-responsive to Plaintiff's written discovery and did not object to or appear at their noticed depositions. Defendants did not oppose or appear at the hearings for Plaintiff’s Motions to Compel Responses to Written Discovery and now has violated the Court’s order to provide responses.

9) Defendants have also failed to oppose this motion for terminating sanctions.

On May 11, 2023, Defendant Youval Zive filed a late opposition stating that counsel had first learned of the motion on May 9, 2023 when counsel received the Plaintiff’s Notice of Non-Opposition. Defendant also claims that he is hospitalized at present.

Analysis

When a party fails to submit to discovery, the Court should first impose monetary sanctions and order the party to respond. (Moofly Productions, LLC v. Favila (2020) 46 Cal.App.5th 1, 10.) If the party fails to obey the court’s orders, then the court may impose appropriate sanctions including terminating sanctions. (Id.) “California discovery law authorizes a range of penalties for a party’s refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)

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, citing Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Issuance of a terminating sanction should not be taken lightly; however, “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, citing Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279- 280.) A “sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.” (Liberty Mutual Fire Ins. Co. v. Lcl Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.)

The Court may impose monetary, issue, evidence or terminating sanctions against any party which engages in the misuse of discovery. (CCP §§ 2023.010, 2023.030.) Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery. (CCP § 2023.010(d), (g).)

After notice and an opportunity for a hearing, the Court may impose terminating sanctions by one of the following orders pursuant to CCP § 2023.030(d):

1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

2) An order staying further proceedings by that party until an order for discovery is obeyed.

3) An order dismissing the action, or any part of the action, of that party.

4) An order rendering a judgment by default against that party.

In this case, Defendants have demonstrated a repeated pattern of failing to respond to discovery and ignoring court orders. This is a clear abuse of the discovery process. Monetary sanctions failed to make Defendants act, so terminating sanctions are now appropriate.

However, the late Opposition provides a partial explanation for the obviously improper discovery abuse. There is no reasonable explanation for the pervasive improper conduct of Defendant. The parties should be prepared to argue this matter at the hearing.