TENTATIVE RULING

Defendants Wood of Chiu Living Trust, Roman Chiu, and Abby Wood’s Motion for Terminating, Evidentiary, Issue Preclusion as Against Plaintiff is DENIED.

Defendants Wood of Chiu Living Trust, Roman Chiu, and Abby Wood to give notice. 

REASONING

Defendants Wood of Chiu Living Trust, Roman Chiu, and Abby Wood (“Defendants”) moves the Court for an order imposing terminating sanctions against Plaintiff Marcelino Arcos (“Plaintiff”) in the form of dismissing Plaintiff’s case against Defendants for failing to provide code-compliant responses, without objections, and pay sanctions as ordered by the Court on August 8, 2023.

If a party engages in the misuse of the discovery process, the court may impose sanctions including terminating, evidence, and monetary sanctions. (See Code Civ. Proc., § 2023.030, subd. (d).) Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) Failing to respond or to submit to an authorized method of discovery also constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).)

“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes).) “[T]wo facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply and (2) the failure must be willful.” (Liberty Mut. Fire Ins. Co. v. LcL Adm’rs, Inc. (2008) 163 Cal.App.4th 1093, 1102, ellipsis omitted.) “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.” (Doppes, supra, 174 Cal.App.4th at p. 992.)

While Plaintiff has failed to comply with the Court’s prior order, the Court finds that terminating sanctions are not warranted at this juncture. Terminating sanctions are a drastic remedy that the Court is not prepared to impose, particularly where Defendants provide no proof of meeting and conferring with Plaintiff or even attempts to contact Plaintiff to obtain the subject responses. The California discovery statutes provide “an incremental approach to discovery sanctions” (Doppes, supra, 174 Cal.App.4th at p. 992), such that it would be improper for the Court to jump from an order entering an order compelling discovery responses to an order for terminating sanctions, as Plaintiff asks the Court to do, because this does not represent the incremental approach contemplated by California law. Put simply, “less severe sanctions [may] produce compliance with the discovery rules,” and until the Court has imposed “incrementally harsher sanctions” to curb Plaintiff’s failure to provide discovery responses, the Court declines to impose “the ultimate sanction of termination.” (See Doppes, supra, 174 Cal.App.4th at p. 992.) The Court notes that Defendants’ motion purports to seek an alternative remedy of evidentiary or issue sanctions, but Defendants have provided no argument for the same, such that the Court has no basis to determine whether these requested remedies are proper.

Accordingly, Defendants Wood of Chiu Living Trust, Roman Chiu, and Abby Wood’s Motion for Terminating, Evidentiary, Issue Preclusion as Against Plaintiff is DENIED.