Judge: Katherine Chilton, Case: 21STLC03129, Date: 2022-09-28 Tentative Ruling

Case Number: 21STLC03129     Hearing Date: September 28, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR TERMINATING SANCTIONS  

MOVING PARTY:   Plaintiff J. Timothy Katzen, M.D.

RESP. PARTY:         None

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

            Plaintiff J. Timothy Katzen, M.D.’s Motion for Terminating Sanctions is GRANTED. The General Denial filed by Defendant Tabitha M. Conway is HEREBY STRICKEN.  

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of 9/26/22                                    [   ] Late                      [X] None

REPLY:                     None filed                                                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 20, 2021, Plaintiff J. Timothy Katzen, M.D. (“Plaintiff”) filed an action against Defendant Tabitha M. Conway.  Defendant Conway filed a General Denial on August 24, 2021.

Plaintiff filed the instant Motion for Terminating Sanctions (the “Motion”). No opposition was filed.

II.              Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”  (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)  The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030, subd. (d).)

III.            Discussion

Here, Plaintiff seeks a terminating sanction due to Defendant’s failure to respond to discovery requests. (Motion, pp. 3, 5.)

Plaintiff served Defendant with Form Interrogatories, Set One, on September 10, 2021 via regular mail.  (4/27/22 Order).  Defendant did not respond to the Form Interrogatories. (Id.)  Accordingly, the Court found Defendant’s failure to respond to be a misuse of the discovery process and ordered Defendant to serve verified responses without objections within thirty (30) days of notice of the order. (Id.) Plaintiff’s request for sanctions also was granted in the amount of $682.50 which were ordered to be paid within thirty (30) days notice of the order. (Id.)  Plaintiff filed a notice of ruling on April 29, 2022 via regular mail, demonstrating that he gave Defendant notice of the Court’s order.  (4/29/22 Notice of Ruling).  As of the date this Motion was filed, Defendant had not served verified responses or paid monetary sanctions. (Motion at pp, 3, 5).

The Court finds terminating sanctions are warranted. Although a terminating sanction is a harsh penalty, the evidence demonstrates Defendant’s compliance cannot be achieved through lesser means given that Defendant has not responded to discovery, has not paid sanctions and has not opposed this Motion.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff J. Timothy Katzen’s Motion for Terminating Sanctions is GRANTED. The General Denial filed by Defendant Conway is hereby STRICKEN.  Plaintiff may file a request for default.  An Order to Show Cause re: Entry of Default is set for November 10, 2022 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is ordered to give notice.