Judge Jill Feeney, Case 20STCV37627 2022-10-18 Tentative Ruling

This is an action for negligence and dangerous condition of public property arising from a trip and fall incident which took place in May 2019. Plaintiff Marsha Trotter filed her Complaint against the City of Los Angeles on October 1, 2020.

Plaintiff argues that terminating sanctions are not appropriate because Plaintiff’s failure to serve responses was due to a bereavement. Plaintiff provided the requested discovery on October 10, 2022 after Defendant filed the instant motion.

Defendant argues that terminating sanctions should be granted because Plaintiff failed to respond to discovery requests, failed to comply with the Court’s July 5, 2022 order, and ignored communications from Defendant’s counsel. In the alternative, Defendant requests that either evidentiary or monetary sanctions against Plaintiff.

If a party engages in the misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., § 2023.030.) Code of Civil Procedure section 2023.010 provides, in relevant part, that “[m]isuses of the discovery process include, but are not limited to, the following: … (d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery.”

“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].) “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. Kilbourne (1978) 84 Cal.App.3d 771, 787.)

Defendant seeks terminating sanctions against Plaintiff. Defendant alleges that Plaintiff violated the Court’s July 5, 2022 order compelling Plaintiff to serve responses to Defendant’s discovery requests. According to the July 5, 2022 order, Defendant originally propounded its discovery requests in December 2021. Plaintiff and her counsel were ordered to pay Plaintiff $600 in sanctions and serve responses within 20 days of the order. As of the date Defendant filed his motion, Plaintiff had not served responses or paid sanctions. (Gonzalez Decl., ¶6.)

Plaintiff argues that she failed to comply with the Court’s July 5, 2022 order because Plaintiff’s nephew passed away in September 2022. (Elmassian Decl., ¶2.) Plaintiff concedes there were multiple periods of inexcusable silence between Plaintiff’s Counsel and Defendant’s Counsel. (Id.) Plaintiff served verified responses to Defendant’s discovery requests on October 10, 2022 after Defendant filed the instant motion. (Id., ¶4.) Plaintiff then attempted to negotiate a sanctions amount and stipulate to a continuance. (Id., ¶¶6-9.)

The evidence shows that Plaintiff’s failure to comply with the Court’s July 5, 2022 order is inexcusable. Although Plaintiff argues the failure to comply was due to a bereavement, Plaintiff’s nephew passed away in September 2022. The responses were due on July 25, 2022. Plaintiff did not provide any explanation why responses were not served for three months after the Court ordered her to serve responses. There is also no explanation for why Plaintiff delayed responding to Defendant’s discovery requests for nearly 10 months after they were propounded. Plaintiff’s Counsel also repeatedly ignored Defendant’s Counsel’s communications.

Despite Plaintiff’s inexcusable failure to timely serve responses to discovery requests, Plaintiff eventually did respond in full to Defendant’s discovery. Because Plaintiff has now served the discovery responses and opposed this motion, the Court declines to grant terminating sanctions at this time. However, Plaintiff and Plaintiff’s counsel are on notice that the Court will not tolerate any further misuses of the discovery process or disobeying orders of the court.

The Court finds that Plaintiff has misused the discovery process and disobeyed a court order by failing to timely respond to Defendant’s discovery requests in compliance with the Court’s July 2022 orders compelling Plaintiff’s responses. Sanctions are appropriate in this instance and the Court awards sanctions in the amount of $2,000.