Judge: Jill Feeney, Case: 21STCV10684, Date: 2023-01-25 Tentative Ruling
Case Number: 21STCV10684 Hearing Date: January 25, 2023 Dept: 30
Department 30, Spring Street Courthouse
January 25, 2023
21STCV10684
Motion for Terminating Sanctions filed by Defendant Jose Rogel
DECISION
The motion is granted.
The case is dismissed with prejudice.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
This is an action for negligence and motor vehicle negligence arising from a vehicle collision that took place in March 2019. Plaintiff Monique Upton filed her Complaint against Defendant Jose Rogel on March 19, 2021.
On October 4, 2022, the Court granted Defendant’s motions to compel Plaintiff’s responses to Form Interrogatories and Requests for Production.
On November 4, 2022, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel.
On December 21, 2022, Defendant filed the instant motion for terminating sanctions. Defendant filed a proof of service indicating that the motion was served on Plaintiff.
Summary
Moving Arguments
Defendant argues that terminating sanctions are appropriate because Plaintiff failed to obey the Court’s October 4, 2022 order compelling Plaintiff to respond to Defendant’s discovery requests.
Opposing Arguments
None.
Legal Standard
“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].)
Discussion
Defendant argues that the Court may grant terminating sanctions because Plaintiff failed to obey the Court’s order compelling discovery responses.
The Court may grant Defendant’s motion to dismiss because Plaintiff’s failure to obey the Court’s October 4, 2022 order is preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules. Plaintiff’s discovery responses were originally due on March 28, 2022. Plaintiff has failed to file responses or pay sanctions to date despite the Court’s order compelling Plaintiff’s responses. (Farahani Decl., ¶7.) The responses have now been delayed for nine months. Although Plaintiff’s former counsel, Michael Shemtoub, appeared for the October 4, 2022 hearing, Shemtoub’s motion to be relieved as counsel was granted on November 4, 2022. Defendant sent a letter to Plaintiff directly on November 8, 2022 requesting compliance with the October 4, 2022 order. (Motion, Exh. B.) Plaintiff did not respond to Defendant’s request and did not oppose this motion.
Plaintiff has never responded to Defendant’s discovery requests despite the October 4, 2022 order and follow up correspondence from Defendant’s Counsel. Plaintiff did not oppose this motion. Based on these facts and the added fact that these discovery requests have been outstanding for ten months, it appears that Plaintiff is no longer interested in litigating this matter. There is no evidence that a lesser sanction would achieve compliance as Plaintiff appears to have dropped out of this matter completely.
Therefore, the Court finds terminating sanctions proper.
