Judge: Lynette Gridiron Winston, Case: 21STCV17487, Date: 2024-02-05 Tentative Ruling

Case Number: 21STCV17487    Hearing Date: February 5, 2024    Dept: 6

CASE NAME:  Linda Marie Aversa, et al. v. Ford Motor Company, LTD, et al. 

Defendant Kaj Wendall Faaborg’s Motion for Sanctions Against Plaintiff Ricardo Olivas 

TENTATIVE RULING

The Court GRANTS the motion for terminating sanctions. The Court DENIES Faaborg’s request for monetary sanctions. 

             Faaborg is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND

This is a wrongful death case arising out of an auto accident on January 9, 2020. On May 10, 2023, plaintiffs Linda Marie Aversa, individually and as the successor-in-interest to the Estate of Jeremy Richard Olivas (Aversa) and Ricardo Olivas (Olivas) filed this action (Case Number 21STCV17487) against defendants Ford Motor Company, LTD, Will Tiesiera Ford, Inc., Kaj Wendall Faaborg (Faaborg), and Does 1 through 50, alleging causes of action for strict product liability, negligent product liability, and motor vehicle negligence. 

On May 13, 2021, plaintiff Marshall Tanaka filed a complaint in Case Number 21STCV18090 against defendants Ford Motor Company, LTD, Will Tiesiera Ford, Inc., Kaj Wendall Faaborg, and Does 1 through 50, alleging causes of action for strict product liability, negligent product liability, and motor vehicle negligence. 

On December 8, 2021, the Court consolidated Case Numbers 21STCV17487 and 21STCV18090, with Case Number 21STCV17487 designated as the lead case. 

On December 29, 2021, Aversa filed a request for dismissal of her claims under Case Number 21STCV17487 without prejudice. The dismissal was entered on January 11, 2022. 

On January 5, 2022, Aversa filed a separate complaint under Case Number 22STCV00500 against Ford Motor Company, LTD, Will Tiesiera Ford, Inc., Kaj Wendall Faaborg, and Does 1 through 50, alleging causes of action for strict product liability, negligent product liability, motor vehicle negligence, and successor-in-interest damages including decedent Jeremy Olivas’ non-economic damages and for exemplary damages. 

On August 2, 2022, Court consolidated Case Numbers 21STCV17487, 21STCV18090, and 22STCV00500, with Case Number 21STCV17487 designated as the lead case. 

On December 28, 2023, Defendant Faaborg filed a motion for sanctions against Plaintiff Ricardo Olivas. The motion is unopposed. On January 29, 2024, Faaborg filed a notice of non-opposition from Olivas. 

LEGAL STANDARD

The court is authorized, after notice and an opportunity for hearing, to impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, and contempt. (Code Civ. Proc., § 2023.030, subds. (a)-(e).) A terminating sanction may be imposed by an order dismissing the action of the party that brought the action. (Id., § 2023.030, subd. (d)(3).)   

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. [Citation.]” (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992; see J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1169.) If a lesser sanction fails to curb misuse, a greater sanction is warranted. (Doppes, supra, 174 Cal.App.4th at p. 992.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed what is required to protect the interests of the party entitled to but denied discovery.’” (Id.) “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.” (Id., quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280); Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702, quoting Doppes and Mileikowsky.) 

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent 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.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes, supra, 174 Cal.App.4th 967, 992.) 

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 discovery responses. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.)      

Code of Civil Procedure, section 2023.010, subdivisions (d) and (f) provide that a misuse of the discovery process includes, but is not limited to, “[f]ailing to respond or to submit to an authorized method of discovery” and “[m]aking an evasive response to discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (f).) 

DISCUSSION

Terminating Sanctions

            “The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two factors are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply ... and (2) the failure must be wilful [sic].... [Citation.]” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) 

Defendant Faaborg seeks terminating sanctions to have Plaintiff Olivas’ complaint dismissed due to Olivas’ repeated failures to comply with discovery. Faaborg indicates having served written discovery requests on Olivas on May 9, 2022. (Jackson Decl., ¶ 3, Ex. 1.) Olivas failed to provide responses. (See Id., ¶¶ 4-5.) Counsel for Faaborg called Olivas, confirmed his address, discussed his overdue responses, and granted Olivas an additional ten days to provide responses. (Id.) Olivas failed again to provide responses. (Id., ¶¶ 6-7.) Counsel for Faaborg sent Olivas a letter on June 29, 2022 regarding the overdue responses, but still received no response. (Id.) 

Due to Olivas’ lack of responses, Faaborg proceeded with motions to compel. (Jackson Decl., ¶ 7.) On April 20, 2023, the Court granted Faaborg’s motions to compel and ordered Olivas to provide verified responses to Faaborg's written discovery requests within 30 days of the date of the ruling. (Minute Order (4/20/23).) On October 10, 2023, counsel for Faaborg sent a letter to Olivas regarding the continuing lack of responses and requested Olivas to provide responses within 30 days. (Jackson Decl., ¶ 9, Ex. 3.) Olivas still has not provided any responses or responded to counsel for Faaborg’s letter. (Jackson Decl., ¶ 9.) 

The Court further notes that Olivas has exhibited a consistent pattern of not participating in this action and complying with discovery obligations. The Court’s April 20, 2023 order granted Defendants Ford Motor Company and Will Tiesiera Ford, Inc.’s motion for terminating sanctions against Olivas for the same patterns of behavior. (Minute Order (4/20/23).) Faaborg’s motion is unfortunately further evidence of Olivas’ failure to participate in this action and comply with discovery obligations. Olivas has also failed to file an opposition demonstrating that his noncompliance was not willful.

Based on the foregoing, the Court finds Olivas failed and refused to comply with the Court’s April 20, 2023 order and his ongoing discovery obligations, and that his failure to comply was willful. (See Doppes, supra, 174 Cal.App.4th at p. 992.) Given Olivas' prior failures to comply with discovery obligations and apparent disinterest in prosecuting this action, the Court further finds that imposing lesser sanctions would not produce compliance. Therefore, the Court GRANTS Faaborg’s motion for terminating sanctions. 

Issue and Evidentiary Sanctions

Given the Court’s decision to grant terminating sanctions, Faaborg’s alternative request for issue and evidentiary sanctions is moot.[1] 

Monetary Sanctions

Given the Court’s decision to grant terminating sanctions, the Court does not find imposition of further monetary sanctions necessary. While the Court does not deny that  Olivas misused the discovery process by failing to respond to discovery requests, the Court exercises its discretion to not impose monetary sanctions. Therefore, the Court DENIES Faaborg’s request for monetary sanctions. (See Code Civ. Proc., § 2023.030, subd. (a).) 

CONCLUSION

The Court GRANTS the motion for terminating sanctions. The Court DENIES Faaborg’s request for monetary sanctions. 

             Faaborg is ordered to give notice of the Court’s ruling within five calendar days of this order.