Judge: Glenn R. Salter, Case: 22-1263478, Date: 2023-05-25 Tentative Ruling

The motion of the defendant for terminating sanctions is GRANTED in part and DENIED in part.

On May 31, 2022, the plaintiffs filed an action against defendant insurance company for breach of contract and for breach of the covenant of good faith and fair dealing.  (ROA 2.)  Plaintiffs alleged that they had an insurance policy with the defendant, they suffered a flood throughout various portions of their residence, and defendant wrongfully denied their claim.

In December 2022, defendant served the plaintiffs with Special Interrogatories (Set One).  It consisted of only four questions that asked only for the amount and nature of the damages claimed by the plaintiffs.  The plaintiffs never responded to the discovery.

On February 3, 2023, defendant filed a motion to compel responses.  (ROA 52.)  The plaintiffs did not file any opposition (ROA 57, Notice of Non-Opposition) and counsel did not appear at the hearing.  The motion was granted, sanctions were also imposed jointly against counsel and the plaintiffs.  (ROA 65.)  An order was signed March 22, 2023.  (ROA 67.)

However, it is unclear from the record if the signed order was ever served on the plaintiffs.  The proof of service attached to the order shows a service date of February 3, 2023.  (ROA 67.)

On April 25, 2023, defendant filed a motion for terminating sanctions.  (ROA 71.)  The motion was based on (a) the failure of plaintiffs to comply with the court’s order as to the Special Interrogatories, including the failure to pay the court-ordered sanctions, and (b) the need to have time to remove the case to federal court.

The plaintiffs have not filed any opposition.  (See ROA 75, Notice of Non-Opposition.)

Plaintiff’s failure to submit any opposition to the motion for terminating sanctions may be treated by the court as a concession by plaintiffs that the motion has merit.  But even so, it seems premature to dismiss the action based on this record and the court declines to do so.

That said, the motion sought relief in the alternative—that is, if the court did not grant terminating sanctions, defendant asked the court to set the outside limit of damages at $75,000 because of the federal court issue.

The motion to terminate the action is DENIED.  The court finds such an order premature.

The motion, insofar as it requests an order limiting damages to a maximum of $75,000, is GRANTED.  The Special Interrogatories were limited to damages.  They did not go to the issue of liability.

The defendant shall give notice.  The Mandatory Settlement Conference and the Jury Trial in this matter remain on calendar.