Judge Jill Feeney, Case 21STCV11793 2023-02-28 Tentative Ruling

The Court sets an OSC Re: Dismissal of Defendant Patricia Rivera for Failure to File Proof of Service/Failure to Enter Default and Dismissal of Defendant Lhullier for Failure to Enter Default for March 20, 2023 at 10:00 a.m.

This is an action for strict liability, negligence, and strict liability for an animal with known dangerous propensities arising from a dog attack which took place in January 2019. Plaintiff Bryn Torres Friedenberg filed her Complaint against Defendants Matthew Lhullier and Patricia Rivera on March 26, 2021.

Plaintiff moves for terminating sanctions on the grounds that Defendant failed to obey the Court’s October 28 and December 6, 2022 orders compelling him to respond to Plaintiff’s discovery requests. Plaintiff also alleges that Defendant refused to produce himself for deposition. Alternatively, Plaintiff requests evidentiary sanctions precluding Defendant from introducing evidence related to (1) Defendant’s affirmative defenses, (2) Defendant’s denial of Plaintiff’s allegations, (3) any argument that Defendant is not wholly liable for the subject incident, (4) any argument that Plaintiff is at fault for the subject incident, and (5) any argument that Plaintiff failed to mitigate her damages. Plaintiff also seeks monetary sanctions for the cost of Defendant’s failure to appear for deposition.

If a party is required to submit to a physical or mental examination and fails to submit, a court may impose issue, evidence, or terminating sanctions against the party who failed to appear. (Code Civ. Proc., section 2032.410.) A court may impose monetary sanctions in lieu of or in addition to non-monetary sanctions. (Id.)

“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].)

A court should select sanctions that are tailored to the harm caused by the misuse of the discovery process that should not exceed what is required to protect the party harmed by that misuse. (Department of Forestry & Fire Protection v Howell (2017) 18 CA5th 154, 191, disapproved on other grounds.) Sanctions should generally be imposed in an incremental approach, with terminating sanctions being the last resort. (Id.)

“Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)¿ “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 (citation omitted).) “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Ibid. (citations omitted).)

Plaintiff moves for terminating sanctions on the grounds that Defendant failed to obey the Court’s October 28 and December 6, 2022 orders compelling Defendant to respond to Defendant’s written discovery requests.

Plaintiff’s counsel testifies that he served notices of the Court’s orders compelling Plaintiff to respond to discovery requests on November 1 and December 13, 2022. (Shahrari Decl., ¶¶4-5.) As of February 1, 2023, Defendant had not made any effort to respond to Plaintiff’s written discovery requests. (Id., ¶6.) Plaintiff’s counsel also attempted to depose Defendant twice on August 9, 2022 and on January 11, 2023. (Id., ¶¶9-10.) Defendant did not appear and Plaintiff incurred costs to take certificates of nonappearance. (Id., ¶12.)

The October 28 and December 3, 2022 court orders state that Defendant failed to serve responses to Plaintiff’s discovery requests despite multiple extensions. Plaintiff originally propounded discovery requests on April 15, 2022.

Defendant has now failed to comply with two court orders compelling him to respond to Plaintiff’s written discovery requests. Defendant did not appear at the hearings in October and December 2022. Defendant does not oppose the instant motion. Defendant’s failure to comply with two court orders demonstrates a history of abuse. Therefore, terminating sanctions are granted.

Plaintiff also requests monetary sanctions for costs incurred after Defendant failed to appear for deposition. However, Plaintiff has not moved to compel Defendant to appear for deposition, nor has Defendant violated a court order related to his deposition. Monetary sanctions are denied.