Judge Lee S. Arian, Case Number: 21STCV00605, Date: 2023-11-02 Tentative Ruling

On January 7, 2021, Plaintiff Valeria Childress filed this action against Defendants Park West Apartments and Equity Residential Management, LLC (“ERM”) for injuries arising from a slip and fall on Defendants’ premises.

On February 2, 2023, ERM filed these motions to compel Plaintiff’s responses to Form Interrogatories, Special Interrogatories, and Demand for Production of Documents. The Court granted the motions on August 9, 2023. ERM filed a proof of service showing Plaintiff was served with notice of the ruling on August 10, 2023.

To date, Plaintiff has not provided responses to the foregoing discovery requests.

On October 10, 2023, ERM filed this motion for imposition of terminating sanctions. ERM also seeks additional monetary sanctions against Plaintiff and her counsel.

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].)¿

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 ERM with her discovery responses, disobeyed a Court Order compelling her to provide discovery 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 Order compelling her compliance.¿ The Court finds Plaintiff’s failure to provide initial discovery responses was willful as was her disobedience to the Court’s Order. Given Plaintiff’s apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse.¿

Based on the foregoing, the unopposed motion for terminating sanctions is GRANTED. Plaintiff Valerie Childress’s Complaint against Defendant Equity Residential Management, L.L.C. is dismissed with prejudice.

Given that the Court has granted the motion, the Court declines to impose further monetary sanctions.

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.

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule. 8.54(c).)

[2] The Court also notes Plaintiff attempted to file a Request for Dismissal of the entire action with prejudice on October 26, 2023. Dismissal was not entered due to a procedural defect in the request.