Judge: Kerry Bensinger, Case: 20STCV22463, Date: 2023-04-27 Tentative Ruling

Case Number: 20STCV22463    Hearing Date: October 11, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 11, 2023                               TRIAL DATE:  December 6, 2023

CASE:                         Troy Perry v. Brian Boudreaux, et al.

CASE NO.:                 20STCV22463

MOTION FOR TERMINATING SANCTIONS

MOVING PARTY:               Defendants Brian E. Boudreaux and Sophia Rocha

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            This is a consolidated action arising from a multi-vehicle collision involving Troy Perry, Adrineh Hayrabidian, and Alex Omar Munguia Romero (“Romero”), and Defendants, Brian Boudreaux and Lois Sophia Rocha, arising from an automobile collision that occurred on October 1, 2019.   Romero is currently self-represented.

On May 4, 2023, the Court granted Defendants’ motion to compel Romero’s appearance at a physical examination.  Pursuant to the Court’s order, Plaintiff was ordered to appear at a physical examination with Dr. Ronald Kvitne on May 15, 2023. 

On May 10, 2023, Defendants served Romero with notice of the Court’s May 4, 2023 ruling.  Plaintiff has not appeared for examination with Dr. Kvitne.  Defendants now seek an order for terminating sanction of Romero’s complaint.  Defendants do not seek monetary sanctions.

The motion is unopposed.

II.        LEGAL STANDARDS

Code of Civil Procedure section 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, subd. (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, supra, 84 Cal.App.3d at p. 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 p. 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 p. 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].)¿ 

III.      DISCUSSION

            As the Court stated in Deyo, supra, 84 Cal.App.3d at pp. 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.  Romero did not appear for a medical examination, disobeyed a Court Order compelling Plaintiff to appear for medical examination, and has failed to file an opposition to this motion.    

            The Court finds Romero knew of his discovery obligations and knew of the Court Order compelling his compliance.  The Court finds Plaintiff’s failure to appear for medical examination was willful as was his disobedience to the Court’s Order.  Given Romero’s apparent disinterest in prosecuting this action and apparent abandonment of the case, the Court finds lesser sanctions would not curb the abuse.  

IV.       CONCLUSION

            Based on the foregoing, the motion for terminating sanctions is GRANTED.  Plaintiff Alex Omar Munguia Romero’s Complaint against Defendants Brian E. Boudreaux and Sophia Rocha is dismissed with prejudice. 

Moving party to give notice. 

Dated:   October 11, 2023                                         ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.