Judge Lee S. Arian, Case Number: 19STCV45683, Date: 2023-12-18 Tentative Ruling

On December 18, 2019, Plaintiff Audelino Abundis initiated this action against Defendant, 5757 Wilshire, LLC, for injuries arising from a slip and fall on the stairway of Defendant’s parking structure. On September 30, 2022, the Court issued sanctions in the amount of $810.00 payable within 20 days when Plaintiff failed to respond to Defendant’s initial set of discovery responses. Plaintiff have not paid this amount to date. (Morovati Decl. ¶ 3.) On September 5, 2023, the Court issued another sanctions order in the amount of $960.00. Again, Plaintiff failed to comply. (Morovati Decl. ¶ 4.) On December 18, 2023, the Court ruled on Defendant’s various Motions to Compel Further Discovery Responses due to multiple deficiencies within Plaintiff’s responses. The Court granted most of the motions and ordered Plaintiff to provide further verified responses to Form Interrogatories, Special Interrogatories, and Request for Production of documents within 30 days and imposed sanctions in the amount of $2,760.00. (Morovati Decl. ¶ 5.) On January 23, 2024, a hearing was scheduled regarding sanctions only for Defendant’s Motion to Compel Further Discovery Responses. The Court ordered sanctions in the amount of $3,000.00. Defendant did not produce further responses per the Court’s December 18, 2023, order and Plaintiff also did not pay any of the Court-ordered sanctions. (Morovati Decl. ¶ 9.) Now, on February 7, 2024, Defendant moves the Court to impose a terminating sanction on Defendant for his numerous failures to obey the Court’s orders. No opposition was filed.

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. 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).) “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.” (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.)

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.) 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].)

Terminating sanctions are warranted in the present case due to Plaintiff's consistent failure to comply with multiple court orders regarding discovery obligations and sanctions payments. (Morovati Decl. ¶¶ 3, 4, 5, 9.) Since September 30, 2022, the Court has issued numerous orders for monetary sanctions, yet Plaintiff has failed to comply with any of them. On December 18, 2023, the Court ordered Plaintiff to submit further verified responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents within 30 days. Plaintiff has yet to provide Defendant with the court-ordered discovery responses. This repeated and deliberate disregard for the Court's orders indicates that lesser sanctions have been ineffective in ensuring Plaintiff's compliance.

Even in the face of a motion for terminating sanctions, Plaintiff did not file an opposition. It has appeared that Plaintiff has abandoned this case. The Court concludes Plaintiff knew of his discovery obligations, knew of the Court Orders compelling his compliance, and failed to demonstrate his non-compliance was not willful. Given Plaintiff’s failure to comply with court’s orders, failure to participate in litigation and apparent disinterest in prosecuting this action, the Court determines that lesser sanctions would not prevent further misconduct.

Therefore, Defendants' motion for terminating sanctions is GRANTED. Plaintiff's action against Defendants is hereby dismissed without prejudice. The request for monetary sanctions is denied, as the imposition of terminating sanctions adequately serves the ends of justice.

¿PLEASE TAKE NOTICE:¿¿¿¿¿

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