Judge: Lynne M. Hobbs, Case: 21STCV43025, Date: 2023-09-28 Tentative Ruling

Case Number: 21STCV43025    Hearing Date: January 22, 2024    Dept: 30

REBECCA CALE PERICO vs BONNIE BRAE INVESTMENT SERVICES, LLC, A CALIFORNIA CORPORATION

TENTATIVE

Defendant’s unopposed motion for terminating sanctions dismissing Plaintiff Rebecca Cale Perico’s case is GRANTED. Plaintiff’s complaint is dismissed with prejudice. Moving party to give notice.

Legal Standard

"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

Defendant moves for terminating sanctions against Plaintiff based on Plaintiff’s failure to comply with the Court’s October 12, 2023 order, which ordered Plaintiff to respond to discovery.

On October 12, 2023, this Court granted Defendant’s motions to compel Plaintiff’s responses to form interrogatories, request for production, and to deem requests for admissions admitted, and ordered Plaintiff to provide responses to the interrogatories, request for production within 20 days. (10/12/2023 Minute Order.) Notice of the ruling was sent to Plaintiff’s counsel on the same day. (10/12/2023 Notice of Ruling.)

Despite following up regarding the discovery responses, defense counsel still did not receive the responses. (Hart Decl., ¶ 5; Exh. B.)

Plaintiff has been engaging in discovery abuse. Defendant has attempted to obtain Plaintiff’s written discovery since May 8, 2023, yet Plaintiff has failed to comply with her discovery obligations. Further, Plaintiff has also failed respond to this discovery, even after

this Court has ordered her to respond. Based on Plaintiff’s failure to comply with the Court’s Order, the Court finds that terminating sanctions are warranted in this instance. Plaintiff has failed to explain why she has been unable to comply with the outstanding court order, and as a result, the Court finds that Plaintiff has willfully misused the discovery process by this lack of diligence. (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, Plaintiff’s failure to comply has been detrimental to Defendant’s ability to prepare for trial, which is currently set for March 15, 2024. As such, because there is a willful history of discovery abuse after numerous informal and formal attempts to obtain such discovery, to the detriment of Defendant, the motion for terminating sanctions is granted.