Department 30, Spring Street Courthouse

January 4, 2022

22STCV19299

Motion for Terminating Sanctions against Defendant Lap K. Yeung filed by Plaintiff Shin Min

The motion is granted.

Yeung’s answer is stricken.

The Court Sets an OSC Re: Dismissal for Failure to Enter Default with Respect to Defendant Lap K. Yeung for March 8, 2022 at 8:30 a.m.

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

This is an action for negligence arising from an incident where a motorized wheelchair struck a pedestrian at a Costco wholesale store. Plaintiff Shin Min filed a Complaint against Defendants Lap K. Yeung and Leung Yeung on June 13, 2022.

On October 5, 2022, the Court granted Plaintiff’s motion to compel discovery.

On October 24, 2022, default was entered with respect to Defendant Leung Yeung.

On November 14, 2022, Plaintiff filed the instant motion for terminating sanctions.

Moving Arguments

Plaintiff moves for terminating sanctions on the grounds that Defendants failed to obey the Court’s October 5, 2022 order compelling discovery responses by failing to serve responses and pay sanctions as ordered.

Opposing Arguments

None.

“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].) 

Plaintiff argues that the Court may dismiss strike Defendant’s answer because Defendant failed to obey the Court’s order compelling discovery responses and to pay sanctions. 

The Court may grant Plaintiff’s motion because the Defendant’s failure to obey the Court’s October 5, 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. According to the October 5, 2022 minute order, Defendant failed to respond to Plaintiff’s discovery requests, which were originally propounded on July 12,2022. Defendant did not oppose Plaintiff’s motion to compel discovery, did not appear at the hearing on that motion, and does not oppose the instant motion for terminating sanctions. It appears Defendants is no longer interested in litigating this action. 

Defendant has never responded to Plaintiff’s discovery requests or paid sanctions despite the October 5, 2022 order. (Yarris Decl., ¶3.) Therefore, the Court finds terminating sanctions proper.