Judge Kerry Bensinger, Case 22STCV23868 2023-03-20 Tentative Ruling

On July 25, 2022, Allstate Northbrook Indemnity Company (“Petitioner”) filed a petition for the Court to assign a case number in an uninsured motorist arbitration with Le Tuyet Dam (“Respondent”) relating to an October 25, 2019 automobile accident.

On December 30, 2022, the Court granted Petitioner’s motions to compel Respondent to serve responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents. Petitioner was ordered to serve verified responses within twenty (20) days of the Court’s ruling. The Court, however, declined to impose monetary sanctions.

To date, Respondent has not served responses to Petitioner’s discovery requests.

Petitioner now moves for terminating sanctions and dismissal of the action based on Respondent’s failure to obey the Court’s December 20, 2022 order compelling Respondent’s responses to discovery.

The Insurance Code adopts the Civil Discovery Act in its entirety and “grants the superior court the exclusive jurisdiction to hear discovery matters arising under uninsured motorist arbitrations,” including motions for terminating sanctions. (Miranda v. 21st Century Ins. Co. (2008) 117 Cal.App.4th 913, 926 [citing Insurance Code section 11580.2, subd. (f).) Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) 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.)

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].)

In this case, Respondent did not serve responses to discovery and disobeyed the Court’s December 20, 2022 order so compelling. Further, Petitioner served a Notice of Ruling on Respondent and sent multiple meet and confer emails to Respondent’s counsel between April 28, 2021 and January of 2023. (Garibyan Decl., ¶¶ 3-8.) Therefore, the Court concludes Respondent knew of his discovery obligations and knew of the December 20, 2022 Order compelling Respondent’s compliance. Petitioner now moves for terminating sanctions due to Respondent’s failure to respond to discovery.

Pursuant to Deyo, supra, 84 Cal.App.3d at p. 776, the Court should typically impose lesser sanctions prior to awarding terminating sanctions. However, there are circumstances where imposition of terminating sanctions is appropriate without first imposing issue and/or evidentiary sanctions. (See Laguna Auto Body v. Farmers Ins. Exch. (1991) 231 Cal.App.3d 481, 490-91.)

Absent Respondent’s appearance at the hearing for this motion, the Court intends to impose terminating sanctions for three reasons. First, Petitioner cannot meaningfully prepare for trial/arbitration without Respondent’s responses to initial discovery, and therefore, given the scope of the discovery at issue, an issue or evidentiary sanction would be tantamount to a terminating sanction. Second, Respondent has not opposed this motion and appears to have abandoned the case. Third, given Petitioner’s evidence, the Court finds that Respondent’s failure to comply with the Order was willful. (See Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618, 19 (noting where a party willfully fails to comply with a court order, nonmonetary sanctions, including terminating sanctions, are warranted.) Petitioner does not seek imposition of monetary sanctions in connection with the motion, and none are imposed. If Respondent’s counsel appears for the hearing, the Court will address alternatives to terminating sanctions.

The motion is granted. Respondent’s complaint against Petitioner is dismissed without prejudice.

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’s 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.

Hon. Kerry Bensinger

Judge of the Superior Court