Judge Kerry Bensinger, Case Number: 22STCV36816, Date: 2025-03-19 Tentative Ruling

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This action arises from the alleged breach of an oral contract. On November 22, 2022, Plaintiff, Joanne Pak, a self-represented litigant, filed a Complaint against Defendants, Jennifer O. Oh (Oh) and Younhee Cho. On November 16, 2023, Plaintiff filed the operative First Amended Complaint (FAC), alleging causes of action for (1) Financial Elder Abuse, (2) Breach of Contract, and (3) Money Had and Received and Account Stated. Defendant Oh demurred to the FAC. On January 23, 2024, the court sustained the demurrer without leave to amend as to the second and third causes of action. The demurrer to the first cause of action was overruled. Accordingly, the only remaining cause of action is for financial elder abuse.

On June 20, 2023, Defendant Oh propounded Request for Documents, Set One on Plaintiff. Plaintiff did not respond to the discovery. Defendant Oh moved to compel. The court granted the motion on February 13, 2024 and ordered Plaintiff to provide responses to the Request for Document and to pay sanctions. Plaintiff responded to the discovery but did not pay sanctions.

Defendant Oh, on behalf of Defendants, later propounded Special Interrogatories, Set Two, and Request for Documents, Set Two. Plaintiff responded to both sets of discovery. Defendant Oh took issue with the responses and filed motions to compel further responses. The court granted the motions on November 12, 2024, and ordered Plaintiff to serve supplemental responses and pay sanctions within 45 days. To date, Plaintiff has not served supplemental responses or paid sanctions.

On January 28, 2025, Defendants filed this motion for terminating sanctions. Alternatively, Defendants request issue and/or evidence sanctions to prohibit Plaintiff from testifying and/or presenting any documents at trial. Defendants also request monetary sanctions against Plaintiff.

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(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 (Deyo).)¿¿¿¿¿¿¿

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].)¿¿¿¿¿

Defendants seek an order dismissing Plaintiff’s complaint as a terminating sanction for Plaintiff’s failure to respond to discovery as ordered by this court on November 12, 2024. (See Minute Order, dated 11/12/24.) Defendants also seek dismissal for Plaintiff’s failure to pay sanctions as ordered by this court on February 13, 2024, and November 12, 2024. (See Minute Orders, dated 2/13/24 and 11/12/24.) Plaintiff does not present any argument in her opposition to counter these points.

As the Second District Court of Appeal 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.”¿ Here, terminating sanctions are not appropriate. Plaintiff has apparently disobeyed a court order directing her to provide supplemental responses. But failure to obey one court does not constitute a history of discovery abuse which warrants dismissal of this action. Further, a failure to pay court-ordered sanctions is not discovery abuse. For this reason, a terminating sanction is too drastic a measure.

Alternatively, Defendants request imposition of issue and/or evidence sanctions. The court may well impose issue or evidence sanctions but Defendants make no effort to delineate the specific issues on which Plaintiff should be precluded from testifying or what evidence Plaintiff should be prevented from introducing at trial. The court will hear from the parties.

Defendant requests sanctions against Plaintiff. Given there is no dispute that Plaintiff has not provided the court-ordered discovery responses, sanctions are warranted. Accordingly, sanctions are imposed against Plaintiff in the sum of $553.41, representing 1 hour at defense counsel’s hourly rate and $73.41 in filing fees.

The request for sanctions is granted. Plaintiff is ordered to pay sanctions in the amount of $553.41 to Defendant, by and through her counsel within 30 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court