Judge: Mark E. Windham, Case: 22STLC07037, Date: 2023-12-06 Tentative Ruling

Case Number: 22STLC07037    Hearing Date: December 6, 2023    Dept: 26

Moore v. Johnson, Jr., DDS, et al.

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.010)

TENTATIVE RULING:

Defendant Raymont T. Johnson, Jr., D.D.S’ Motion for Terminating Sanctions is GRANTED. THE COURT DISMISSES PLAINTIFF DANA MOORE’S COMPLAINT WITH PREJUDICE.

ANALYSIS:

Plaintiff Dana Moore (“Plaintiff”) filed the instant action for breach of contract and dental malpractice against Defendants Raymont H. Johnson Jr., D.D.S. (“Defendant Johnson”) and Practicing the Art of Dentistry (“Defendant PTAD”) on October 25, 2022. Defendants filed an answer on November 16, 2022.

On April 18, 2023, the Court granted Defendant Johnson’s Motions to Compel Responses to Form Interrogatories, Set One, and Special Interrogatories, Set One. (Minute Order, 04/18/23.) Two orders to show cause regarding compliance with the discovery orders were held on July 18, 2023 and September 19, 2023. (Minute Orders, 07/18/23 and 09/19/23.)

Defendant Johnson filed the instant Motion for Terminating Sanctions on October 27, 2023. 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

The Court granted Defendant Johnson’s Motion to Compel Responses to Form Interrogatories, Set One, and Special Interrogatories, Set One, on April 18, 2023. (Minute Order, 04/18/23; Motion, Foxwell Decl., Exh. D.) Pursuant to the order, Plaintiff was to serve Defendants with responses and pay sanctions within 20 days. (Ibid.) Notice of the ruling was served on Plaintiff on the next date. (Notice of Ruling, filed 04/19/23.) Plaintiff has not substantially complied with the order to produce documents or pay sanctions, despite extended meet and confer efforts. (Id. at ¶¶15-16.)

The Court finds that terminating sanctions are warranted for Plaintiff’s non-compliance with the discovery order. Despite notice of the Court’s ruling, Plaintiff failed to produce documents as ordered. Nor has Plaintiff filed an opposition to the instant Motion to dismiss the Complaint. This further demonstrates that compliance with the Court’s orders cannot be achieved through lesser sanctions. Although terminating sanctions are a harsh penalty, “[t]he 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.)

Conclusion

Defendant Raymont T. Johnson, Jr., D.D.S’ Motion for Terminating Sanctions is GRANTED. THE COURT DISMISSES PLAINTIFF DANA MOORE’S COMPLAINT WITH PREJUDICE.

Moving party to give notice.