Judge Kerry Bensinger, Case 20STCV17685 2023-04-11 Tentative Ruling

On May 8, 2020, plaintiff Olga Hernandez (“Plaintiff”) filed this medical malpractice action against defendant Cedars-Sinai Medical Center (“Defendant”). Plaintiff additionally named Palmdale Regional Medical Center and John Doe, M.D., John Doe M.D. 2, and John Doe M.D. 3 (collectively, the “Doe Doctors”) as defendants.

On December 7, 2022, Defendant filed this motion for terminating sanctions or, in the alternative, evidence, issue, and monetary sanctions. The Court heard the motion on January 11, 2023 and posted a tentative ruling granting Defendant’s motion for terminating sanctions. The Court’s ruling was predicated on the fact Plaintiff (1) failed to serve responses to discovery and (2) thereafter disobeyed the Court’s Order to provide responses. Because of the drastic nature of terminating sanctions the Court continued the matter to today’s date to offer Plaintiff an opportunity to correct the failings and/or to file an opposition to the terminating sanctions motion.

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (g).) A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

The court should consider the totality of the circumstances, including 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 discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "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." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

As the Court stated in Deyo, supra, 84 Cal.App.3d at 795-796, “[t]erminating sanctions are appropriate when a party persists in disobeying the court's orders.” Terminating sanctions are appropriate here for that very reason. Plaintiff did not respond to Defendant’s discovery, disobeyed a Court Order to respond and, even after given a further opportunity to correct the errors and/or to file an opposition to the motion, has not done so.

The Court finds Plaintiff knew of her discovery obligations and knew of the Court Order compelling her compliance. The Court finds Plaintiff’s failure to serve responses was willful as was her disobedience to the Court’s Order. Given Plaintiff’s prior failures to comply with discovery obligations and apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse.

Based on the foregoing, the Court GRANTS Defendant’s motion for terminating sanctions. Plaintiff’s complaint against Defendant Cedar Sinai Medical Center is dismissed with prejudice. As the Court is granting terminating sanctions, it declines to impose evidence, issue, or monetary sanctions.

Hon. Kerry Bensinger

Judge of the Superior Court