Judge Lynne M. Hobbs, Case Number: 20STCV45883, Date: 2023-08-21 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV45883, Date: 2023-08-21 Tentative Ruling

Case Number: 20STCV45883 Hearing Date: December 5, 2023 Dept: 30

ARLET GHAZARIAN vs BRANDEN MARQUELL DINKINS, et al.

Motion for Terminating Sanctions

TENTATIVE

Plaintiff’s motion for terminating sanctions is GRANTED. The Court STRIKES Defendant Brandon Marquell Dinkins’ answer. Plaintiff’s request for monetary sanctions is DENIED. Plaintiff is ordered to give notice.

Background

On December 1, 2020, Plaintiff Arlet Ghazarian filed a complaint against Defendants Branden Marquell Dinkins and Rocio Sedano, alleging a cause of action for negligence, stemming from a vehicle collision that occurred on December 17, 2018.

On August 21, 2023, and August 22, 2023, this Court granted Plaintiff’s motions to compel Defendant’s responses to form interrogatories, special interrogatories, and request for production of documents. Defendant was ordered to serve responses without objections within 20 days of date of the orders.

On November 6, 2023, Plaintiff filed this motion for terminating sanctions. On November 20, 2023, Defendant’s counsel filed an opposition. On November 28, 2023, Plaintiff filed a reply.

Legal Standard

CCP section 2023.030 provides that, "[t]o the extent authorized by the chapter governing any particular discovery method..., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose... [monetary, evidence, and terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process...." CCP section 2023.010 provides that "[m]issues of the discovery process include, but are not limited to, the following:... (d) Failing to respond or to submit to an authorized method of discovery.... (g) Disobeying a court order to provide discovery...."

"The trial court may order a terminating sanction for discovery abuse 'after considering the totality of the circumstances: [the] 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 the discovery.'" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246).) "Generally, '[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.'" (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

"Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders." (Id. (citing Lang, supra, 77 Cal.App.4th at pp. 1244- 1246); see, e.g., Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal App 3d 481, 491 (disapproved on other grounds in Garcia v. McCucchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

Discussion

Plaintiff moves for terminating sanctions against Defendant and monetary sanctions against Defendant and counsel of record, on the ground that Defendant failed to comply with the Court's August 21, 2023, and August 22, 2023 orders to respond to discovery and failed to pay sanctions.

On August 21, 2023, August 22, 2023, and August 23, 2023 this Court granted Plaintiff’s motions to compel Defendant’s responses to form interrogatories, special interrogatories, request for production of documents and to deem matters in request for admissions admitted. (8/21/2023, 8/22/2023, and 8/23/2023 Minute Orders.) The Court ordered Defendant to provide verified responses without objections to the discovery within 20 days. (8/21/2023, and 8/22/2023 Minute Orders.) The Court additionally ordered Defendant to pay monetary sanctions in the amount of $560, within 30 days. (8/23/2023 Minute Order.) Defendant has not responded to the Court-ordered discovery. (Quincey Decl., ¶ 11.) Defendant has not paid the Court-ordered sanctions. (Id., ¶ 12.) Defense counsel has represented he has not established contact with Defendant. (Id., ¶ 15.)First, the Court notes that whether Defendant complied with the Court’s order to pay monetary sanctions is not relevant to the determination of whether terminating sanctions¿should be imposed. A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿(Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, CCP §§680.010, et seq. (Id. at 615.)

Defendant, however, has failed to respond to discovery, failed to comply with the Court's orders to respond to discovery, and has not cooperated with plaintiff' counsel in defending this case. Based on Defendant’s failure to comply with the Court’s orders, the Court finds that terminating sanctions are warranted in this instance. Defendant, by his purposeful absence, shows that Defendant has willfully misused the discovery process by lack of diligence and dilatory tactics. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 [“Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.”]) Also, Defendant’s failure to comply has been detrimental to Plaintiff’s attempt to prepare for trial, which is currently set for April 9, 2024. Because Defendant has failed to respond to Plaintiff’s written discovery requests, terminating sanctions are appropriate. (Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069.)

As such, the Court GRANTS the motion and STRIKES Defendant’s answer.

Nevertheless, the Court cannot enter default against Defendant at this time. A statement of damages must be served in the manner of a summons. (CCP section 425.11(d)(1).) The proof of service for the statement of damages (filed on April 25, 2023) that was served on Defendant says it was served by mail. Code of Civil Procedure section 415.40 states: “A summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt.” (CCP section 415.40.) Here, the proof of delivery/return receipt is not filed. While there is another proof of service for the statement of damages attached as Exhibit J to this motion, the proof of service there says it was served by e-service, which is not in the manner of a summons. As such, Plaintiff must request entry of default from the clerk after correcting the proof of service for the statement of damages. Otherwise, if default were entered prior to property serving the statement of damages, it would be void. (CCP section 425.11(c).)

Lastly, the request for monetary sanctions is denied as this motion is being granted, and monetary sanctions would be duplicative relief.

Conclusion

Accordingly, Plaintiff’s motion for terminating sanctions is GRANTED. The Court STRIKES Defendant Brandon Marquell Dinkins’ answer. Plaintiff’s request for monetary sanctions is DENIED.