Judge: Kerry Bensinger, Case: 21STCV37452, Date: 2023-10-12 Tentative Ruling

Case Number: 21STCV37452    Hearing Date: October 12, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 12, 2023                               TRIAL DATE:  October 29, 2023

CASE:                         Esmaralda Y. Fuentes-Perez v. Run D. Wu, et al.

CASE NO.:                 21STCV37452

MOTIONS FOR TERMINATING SANCTIONS

MOVING PARTY:               Defendants Run D. Wu and Dan Yuedong Wu

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On October 8, 2021, Plaintiff, Esmaralda Y. Fuentes-Perez, filed this action against Defendants, Run D. Wu and Dan Yuedong Wu, arising from an apartment fire that occurred around November 2020.  Plaintiff is presently self-represented.

            Run D. Wu’s Discovery Requests

            Run D. Wu served Plaintiff with written discovery requests on December 27, 2021, including Form Interrogatories, Special Interrogatories, and Production of Documents.  Plaintiff served responses on October 24, 2022.  Run D. Wu found Plaintiff’s responses to be deficient and thereafter filed a motion to compel further responses.  The Court granted the motions on April 11, 2023 and April 19, 2023.  Plaintiff did not file opposition or appear at the hearings.  A notice of ruling was served on Plaintiff on April 12, 2023, and April 19, 2023, respectively.  To date, Plaintiff has not provided further discovery responses.

            Dan Yuedong Wu’s Discovery Requests

            Dan Yuedong Wu served Plaintiff with written discovery on February 3, 2023.  After Plaintiff failed to provide timely responses, objections or requests for extension, Dan Yuedong Wu moved to compel Plaintiff’s responses.  The Court granted the motion on August 24, 2022.  Plaintiff did not file opposition or appear at the hearing.  Dan Yuedong Wu served Plaintiff with notice of the ruling on August 30, 2022. 

            After Plaintiff failed to provide Dan Yuedong Wu with discovery responses, Dan Yuedong Wu then moved for evidentiary and monetary sanctions against Plaintiff.  The Court granted the motion on January 26, 2023.  Plaintiff did not file opposition or appear at the hearing.  Dan Yuedong Wu served Plaintiff with the notice of the ruling on February 16, 2023.  Plaintiff did not provide Dan Yuedong Wu with any discovery responses.

             On May 23, 2023, Defendants filed these motions for imposition of terminating sanctions.  Plaintiff did not file any opposition.  Dan Yuedong Wu’s motion was heard on June 15, 2023.  The Court issued a tentative ruling granting Dan Yuedong Wu’s motion.  Plaintiff appeared at the hearing and requested more time to provide discovery responses.  Pursuant to that request, the Court continued the hearing for Dan Yuedong Wu’s motion to October 12, 2023.  The Court advanced and continued Run D. Wu’s motion’s from August 11, 2023 to October 12, 2023.  Defendants were to file supplemental documents in support of their motions no later than 16 court days before the hearing and to re-serve the discovery requests on Plaintiff.  The Court warned Plaintiff that these motions for terminating sanctions would be granted if Plaintiff fails to comply. 

            On June 20, 2023, Dan Yuedong Wu re-served Plaintiff with notice of the Court’s June 15, 2023 ruling.  On the same day, Dan Yuedong Wu re-served Plaintiff with his First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents. 

            On June 30, 2023, Run D. Wu re-served Plaintiff with his First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents. 

On September 13, 2023, and September 15, 2023, Defendants filed supplemental declarations.   According to the declarations, Plaintiff has not served discovery responses or documents.  Defendants now request that the Court grant these motions for terminating sanctions.

            The motions, and supplemental declarations, are unopposed.

II.        LEGAL STANDARDS

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, 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.¿ Plaintiff did not provide Defendant Dan Yuedong Wu with her discovery responses, disobeyed a Court Order compelling her to provide discovery responses, and has failed to file an opposition to this motion.¿¿¿Plaintiff also did not provide further discovery responses to Defendant Run D. Wu, disobeyed a Court order compelling her to provide further responses, and has failed to file an opposition to this motion.

            The Court finds Plaintiff knew of her discovery obligations and knew of the Court Orders compelling her compliance.¿ The Court finds Plaintiff’s failure to provide initial discovery responses and further discovery responses was willful as was her disobedience to the Court’s Orders.  Given Plaintiff’s apparent disinterest in prosecuting this action, even after the Court imposed evidence and additional monetary sanctions on Plaintiff in connection with Dan Yuedong Wu’s discovery motions, and being given another opportunity to provide discovery responses at the June 15, 2023 hearing, the Court finds lesser sanctions would not curb the abuse.¿ 

IV.       CONCLUSION

            Based on the foregoing, the motions for terminating sanctions are GRANTED.  Plaintiff Esmaralda Fuentes-Perez’s Complaint against Defendant Dan Yuedong Wu and Defendant Run D. Wu are dismissed with prejudice. 

Moving party to give notice. 

Dated:   October 12, 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.