Judge Jill Feeney, Case 20STCV09880 2023-01-30 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This is an action for negligence arising from a vehicle collision which took place in March 2018. Plaintiff Omokorede Bisiriyo filed his Complaint against Frank and Courtney Fairbanks, along with Doe Defendants 1-50, on March 11, 2020.

Defendants seek terminating sanctions against Plaintiff on the grounds that Plaintiff failed to comply with the Court’s June 27, 2022 order compelling Plaintiff’s responses to Defendants’ Special Interrogatories, Form Interrogatories, and Demand for Identification and Inspection of Documents.

If a party fails to obey an order compelling answers to interrogatories or requests for production, the court may make orders that are just, including the imposition of an issue, evidence, or terminating sanction under Chapter 7 of the Discovery Act commencing with Code Civ. Proc., section 2023.010. (Code Civ. Proc., sections 2030.290, subd. (c) and 2031.300, subd. (c).)

“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, supra, 223 Cal. App. 4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendant’s Answer and subsequently granting default judgment) 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, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

The Court previously denied this motion because Defendants failed to serve the motion on Plaintiff at his last-known address. Plaintiff’s last-known address according to Plaintiff’s the MC-053 was 680 S Catalina St., #10A, Los Angeles, CA 90005. Defendants’ previous proof of service shows that they served Plaintiff at a different address: 6920 Sepulveda Blvd., Van Nuys, CA 91405.

Defendants’ proof of service for the instant motion shows that Defendants’ counsel served Plaintiff via email pursuant to a notice provided on 1/18/2022 that, during the Coronavirus (COVID-19) pandemic, her office would be working remotely and she would be unable to send physical mail as usual.

Defendants are seeking terminating sanctions under the Discovery Act. The Discovery Act authorizes electronic service under Code Civ. Proc., sections 1011 and 1013. (Code Civ. Proc., section 2016.050.) Sections 1011 and 1013 both authorize service via electronic service pursuant to Code Civ. Proc., section 1010.6 and the California Rules of Court. (Code Civ. Proc., sections 1011(g) and 1013(g).) Code Civ. Proc., section 1010.6, subd. (c)(2) states that an unrepresented party to a civil action may consent to receive electronic service. Express consent may be given by serving a notice of consent on all parties and with the court or by manifesting affirmative consent though electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. (Code Civ. Proc., section 1010.6, subd (c)(3).)

Here, Plaintiff is an unrepresented party and there is no evidence that he has given express consent to receive electronic service. Electronic service on Plaintiff is not authorized absent express consent. Moreover, the Court adds that no email address is listed on the proof of service.