Judge Mark E. Windham, Case 21STLC04785 2023-02-07 Tentative Ruling

Judge: Mark E. Windham, Case: 21STLC04785, Date: 2023-02-07 Tentative Ruling

Case Number: 21STLC04785 Hearing Date: February 7, 2023 Dept: 26

Miller v. Wang, et al.

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.010)

TENTATIVE RULING:

Plaintiff Lanay Miller’s Motion for Terminating Sanctions is GRANTED. THE COURT STRIKES THE JOINT ANSWER FILED BY DEFENDANTS RAYMOND WANG, CHIALEE LIN, AND ALBERT LEWIS PALMIERI ON AUGUST 2, 2021. THE REQUEST FOR ENTRY OF DEFAULT AND MONETARY SANCTIONS IS DENIED.

ORDER TO SHOW CAUSE RE ENTRY OF DEFAULT IS SET FOR MAY 9, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On June 29, 2021, Plaintiff Lanay Miller (“Plaintiff”) filed this action against Defendants Raymond Wang (“Defendant Wang”), Chialee Lin (“Defendant Lee”), and Albert Lewis Palmieri (“Defendant Palmieri”) for damages arising from a dog attack. Defendants filed a joint Answer on August 2, 2021. Numerous discovery motions have been heard by the Court over the duration of this action.

Plaintiff filed the instant Motion for Monetary and Terminating Sanctions against Defendants on November 15, 2022, which seeks an order striking Defendants’ joint Answer and entering their default. No opposition has been filed to date.

Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.”

(Code Civ. Proc., § 2023.030, subd. (d).)

Discussion

On November 22 and 23, 2021, the Court granted Plaintiff’s Motions to Compel Responses to Form Interrogatories, Set One, ordering each Defendant to serve responses and pay $219.15 in sanctions within 20 days. (Minute Orders, 11/22/21 and 11/23/21.) Notice of the orders was mailed to Defendants on the same date. (Motion, Sapir Decl., Exhs. 2-3.) Defendants did not comply with the Court’s orders. (Id. at ¶5.) Plaintiff also obtained orders deeming Requests for Admission, Set One, served on each Defendant admitted with orders to pay additional monetary sanctions. (Minute Orders, 10/04/22, 10/06/22, 10/10/22.) Notice of those orders was also served on Defendants on the same days. (Motion, Sapir Decl., Exhs. 4-6.) Defendants did not pay those monetary sanctions as ordered, either. (Id. at ¶6.)

The Court finds that terminating sanctions are warranted for Defendants’ non-compliance with the orders compelling responses to serve responses to Form Interrogatories, Set One. Despite notice of the Court’s rulings, Defendants failed to serve responses and pay sanctions as ordered. Given the notice provided and length of time that has passed with continued non-compliance, the Court finds Defendants’ failure to comply with the discovery orders to be willful. Although terminating sanctions are a harsh penalty, Defendants’ conduct demonstrates that compliance with the Court’s orders cannot be achieved through lesser sanctions. “The court [is] not required to allow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280.)

However, to the extent Plaintiff’s Motion requests that the Court strike Defendants’ Answer and enter their default, the request is limited to striking the Answer. As set forth above in the relevant statute, terminating sanctions do not include the entry of default. The request for additional monetary sanctions is also denied as futile and punitive, given that Defendants have failed to pay the previously ordered sanctions.

Conclusion

ORDER TO SHOW CAUSE RE ENTRY OF DEFAULT IS SET FOR MAY 9, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.