Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

BACKGROUND 

This action arises from alleged professional negligence in the provision of dental services to Plaintiff Cecil Elmore by Defendants Abbas Eftekhari D.D.S. and Eftekharis D.D.S., Inc. dba United Dental Care.  Plaintiff alleges Defendants allowed employees who were unlicensed to perform dental procedures on Plaintiff.  As a result, Plaintiff claims he suffered “injuries to the inside of his mouth” and “negative mental medical conditions.”  The operative complaint alleges claims for general negligence and intentional tort.  Plaintiff is appearing pro per.     

This hearing is on Defendant’s motion for terminating sanctions or in the alternative for evidentiary, issue and monetary sanctions.  Defendant contends Plaintiff failed to comply with this Court’s November 28, 2022 order compelling Plaintiff to respond without objections to Special Interrogatories (“SROGs”) and to pay monetary sanctions in the amount of $870.  No opposition has been filed as of the posting of this tentative ruling.            

LEGAL STANDARD 

California Code of Civil Procedure section 2023.030 permits courts to impose monetary, issue, evidence or terminating sanctions against anyone engaging in conduct that constitutes a misuse of the discovery process.  Section 2023.010 provides a non-exhaustive list of conduct that is considered misuse of the discovery process, including as relevant here, failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery. (Cal. Civ. Proc. § 2023.010(d), (g).)¿¿ 

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct … If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (CCP § 2023.030(a).)¿¿¿ 

The court may also impose an issue sanction “ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.”  (CCP § 2023.030(b).) ¿The court may also impose an issue sanction by “an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.”  (Id.) 

The court may also impose an evidence sanction by “an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”¿ (CCP § 2023.030(c).)¿¿¿ 

Further, Code of Civil Procedure section 2023.030 subdivision (d) gives courts the authority to issue a terminating sanction by one of four following orders: (1) an order striking out the pleadings or parts of the pleadings of any party engaging in misuse of the discovery process; (2) an order staying further proceedings until an order for discovery is obeyed; (3) an order dismissing the action, or any part of the action, of that party; or (4) an order rendering a default judgment against that party.¿¿ 

In determining whether to impose terminating sanctions, trial courts must consider the totality of the circumstances, including whether the actions were willful; the detriment to the propounding party; and the number of informal and formal attempts to obtain the discovery. (Lang v. Hochman (2000) 77 Cal.App,4th 1225, 1246.)¿ 

The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293; Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928–929.)¿ The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should “attempt[] to tailor the sanction to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.)¿ 

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.¿ “Discovery 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.” (Laguna Auto Body v. Farmers Ins. Exchange, 231 Cal.App.3d at p. 487.)¿ If a lesser sanction fails to curb misuse, a greater sanction is warranted; continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.¿ (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)¿ 

DISCUSSION 

Plaintiff failed to comply with this Court’s November 28, 2022 order compelling Plaintiff to respond without objections to SROGs and to pay monetary sanctions in the amount of $870.  Plaintiff was given notice of the order, had the ability to comply and failed to do so.  Plaintiff’s failure is therefore willful.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 (“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.  A willful failure does not necessarily include a wrongful intention to disobey discovery rules.  A conscious or intentional failure to¿act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.¿ Indeed, the party on whom interrogatories were served has the burden of showing that the failure was not willful.”) (citations omitted).) 

It is additionally significant that other less severe sanctions (i.e., monetary sanctions) have been unsuccessful in curbing the discovery abuse, and in fact monetary sanctions remain unpaid.  (Doppes, 174 Cal.App.4th at 992 (“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.”) (citation omitted).) 

Plaintiff’s pro per status is immaterial and does not act to insulate him from issuance of a terminating sanction.  “When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.  Further, in propria persona litigant is held to the same restrictive rules of procedure as an attorney.”  (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444 (citations omitted).)  “In other words, when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.”  (Burnette v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) 

Given Plaintiff’s willful failure to comply, the history of discovery abuse and the ineffectiveness of less severe sanctions, the Court grants the motion for terminating sanctions and will order a stay of all proceedings until Plaintiff complies with this Court’s November 28, 2022 order.     

Defendants also request monetary sanctions in the amount of $3,566.25, representing 9.35 hours spent at an hourly rate of $375 plus filing fees of $60.  (Conley Decl. ¶5.)  The Court finds that monetary sanctions are warranted given Plaintiff’s ongoing misuse of the discovery process.  (CCP § 2023.030(a).)¿¿¿In determining the amount of sanctions, the Court starts with the lodestar which is the reasonable hourly rate multiplied by the reasonable hours spent.  Counsel’s hourly rate of $375 is reasonable considering he has been practicing for over 23 years and given the prevailing market rates in Southern California.  However, the Court concludes that 9.35 hours is not reasonable for a simple discovery motion and reduces the number of hours to five, which including a filing fee of $60, results in a total amount of sanctions of $1,935.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendants’ motion for terminating sanctions and orders the proceedings stayed until Plaintiff complies with this Court’s November 28, 2022 order.  The Court DENIES as moot Defendants’ motion for evidentiary and issue sanctions.  The Court GRANTS IN PART and DENIES IN PART Defendants’ motion for monetary sanctions.  The Court awards monetary sanctions in the amount of $1,935 to Defendants to be paid by Plaintiff within 30 days of this Order.  The Court further issues an order to show cause why the case should not be dismissed pursuant to the terminating sanctions issued herein. The hearing on that order shall be on May 5, 2023 at 9:00 a.m. 

IT IS SO ORDERED. 

DATED: March 29, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court