Judge Jill Feeney, Case BC718634 2022-08-11 Tentative Ruling

On August 21, 2018, Plaintiff Jake Washington (“Plaintiff”) filed his Complaint alleging a cause of action for motor vehicle negligence against Defendant Los Angeles Metropolitan Transportation Authority (“Defendant”). This action arises out of Plaintiff allegedly catching his arm in the rear middle door of a bus and sustaining bodily injuries, including a left shoulder rotator cuff tear.

On May 31, 2022, the Court granted Defendant’s Motion to Compel Plaintiff’s Independent Medical Examination (“IME”). The Court awarded costs and sanctions in the amount of $2,220 against Plaintiff and ordered Plaintiff to appear for his IME on June 22, 2022.

Defendant argues its motion for terminating sanctions should be granted because Plaintiff failed to follow the Court’s May 31, 2022 order compelling him to attend his IME and pay sanctions in the amount of $2,200.

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].)

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

Plaintiff has violated the Court’s May 31, 2022 order by failing to attend his IME on June 22, 2022 and failing to pay Defendant $2,200 in sanctions. (Borisov Decl., ¶6.) Furthermore, Plaintiff has not responded to Defendant’s correspondence on the matter even after Defendant extended the deadline to pay sanctions. (Id., ¶¶6-8.) Plaintiff has not opposed this motion and offers no explanation as to why he failed to attend his IME, pay sanctions, or even respond to Defendant’s correspondence on this matter. Plaintiff’s inaction despite having proper notice of the Court’s May 31, 2022 order leads the Court to conclude that the failure to appear was a purposeful and willful violation of the order. The Court finds that there is a basis for imposing terminating sanctions and grants the motion.