Department 30, Spring Street Courthouse

August 15, 2022

20STCV39942

Motion for Terminating Sanctions filed by Plaintiff Against Defendants Castillo and Cabrera. 

The motion is granted. 

Defendant Castillo’s answer filed 03/25/2021 is stricken.

Defendant Cabrera’s answer filed 03/25/2021 is stricken.

An OSC Re: Dismissal for Failure to Enter Default (CRC - Rule 3.110(g) is set for September 9, 2022 at 8:30 a.m.

The FSC date of 09/09/2022 and Trial date of 09/26/2022 are advanced and vacated.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order. 

On October 19, 2020, Plaintiff Guillermo Bonilla Bravo, filed a complaint against Defendants Edgar Castillo, Rodrigo Cabrera, and Does 1 to 50 based on a dog attack that occurred on February 18, 2020.  

 

On June 15, 2021, Plaintiff propounded on Defendants the First Set of Form Interrogatories, Special Interrogatories, Request for Admissions, and Demand for Identification and Production of Documents. Plaintiff contends Defendants never provided verified responses.  

 

On November 23, 2021, Plaintiff filed motions to compel discovery responses and to deem requests for admissions admitted. Plaintiff also requested sanctions against Defendants in the amount of $1060.00 per motion.

On February 28 and March 2, 2022, the Court granted Plaintiff’s motions compelling discovery and request for sanctions in the amount of $1,060 for each defendant. Defendants were ordered to serve responses to Plaintiff’s discovery requests within 30 days of the orders.

On July 19, 2022, Plaintiff filed the instant motion for terminating sanctions.

Plaintiff argues terminating sanctions striking one or all of Defendants’ pleading are appropriate because Defendants failed to serve responses to Plaintiff’s discovery requests and failed to pay sanctions. Alternatively, Plaintiff seeks an order of contempt pursuant to Code Civ. Pro section 2023.010.

No opposition was filed.

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.)  

Plaintiff seeks terminating sanctions striking one or all of Defendants’ pleadings. Plaintiff alleges that Defendants violated the Court’s February 28, 2022 and March 2, 2022 orders compelling Defendants to serve verified responses without objections to Form Interrogatories, Special Interrogatories, and Requests for Production. According to the February 28 and March 2, 2022 orders, Defendants were each ordered to pay Plaintiff $1,060 in sanctions. To date, Defendants have not served responses or paid sanctions. (Gonzalez Decl., ¶12.)

Terminating sanctions are appropriate because Defendants’ failure to obey the Court’s February 28 and March 2, 2022 orders is preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules. Plaintiff originally propounded written discovery on June 15, 2021. (Gonzalez Decl., ¶4.) After receiving no response, Plaintiff sent letters to Defendants on August 12, 2021 demanding verified responses without objections within 10 days. (Id., ¶5.) On August 23, 2021, Defendant Castillo provided unverified responses to the first set of Special Interrogatories and Production of Documents. (Id., ¶6.) Plaintiff’s Counsel instructed Defendant Castillo to sign verifications, which Castillo failed to return. (Id., ¶7) Defendants have never requested extensions or called to discuss their failure to provide discovery responses. (Id., ¶8.) Plaintiff’s motions to compel Defendants’ responses to Form Interrogatories, Special Interrogatories, and Requests for Production were granted on February 28 and March 2, 2022. (Id., ¶11-12.) Neither Castillo no Cabrera appeared at the hearings on Plaintiff’s motions to compel. (Id.) Defendants’ responses and sanctions were due on March 30 and April 1, 2022. Defendants have not filed verified responses to discovery or paid sanctions. ((Id., ¶12.)

Defendants violated the Court’s February 28 and March 2, 2022 orders by failing to serve verified responses to Plaintiff’s discovery requests and pay sanctions. Previously, Defendants demonstrated that they are uninterested in defending this action because neither have ever contacted Plaintiff or Plaintiff’s Counsel to discuss the discovery requests. Both Defendants have consistently demonstrated a lack of diligence despite being properly served and aware of their obligations to respond to discovery and obey court orders. Less severe sanctions, monetary sanctions, have not been effective in inducing Defendants to comply with discovery rules. 

Plaintiff’s motion for terminating sanctions is granted.