Judge: Michael E. Whitaker, Case: 21STCV28678, Date: 2023-02-01 Tentative Ruling

Case Number: 21STCV28678    Hearing Date: February 1, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Petitioner Progressive Select Insurance Company (Petitioner) moves to dismiss the underinsured motorist claims of Respondents Michael Soroka and Talkia Ohal (collectively, Respondents) as a terminating sanction.  Respondents have not filed oppositions to the motion.

ANALYSIS

The Civil Discovery Act applies in arbitration of uninsured and underinsured motorist coverage claims.  (Ins. Code, § 11580.2, subd. (f); see Mallard v. Progressive Choice Insurance Co. (2010) 188 Cal.App.4th 531, 540.) 

When a party misuses the discovery process by disobeying a court order to provide discovery, the court in its discretion may impose a terminating sanction by striking a party’s pleading or dismissing the action of the party.  (Code Civ. Proc., §§ 2023.010, subd. (g), 2023.030, subds. (d)(1) & (d)(3); 2030.290, subd. (c), 2031.300, subd. (c).) 

California discovery law authorizes a range of penalties for a party's refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions.  A court has broad discretion in selecting the appropriate penalty, . . . . Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly.  A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party's fundamental right to a trial, thus implicating due process rights.  The trial court should select a sanction that is tailored to the harm caused by the withheld discovery.  Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.

(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [cleaned up].)  Equally important, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Here, on October 25, 2022, the Court ordered Respondents to serve verified responses, without objections, to Petitioner’s form interrogatories, special interrogatories, and demands for production of documents, and to pay monetary sanctions in the amount of $1,055 to Respondent within 30 days of notice of the Court’s orders. (See October 25, 2022 Minute Order.)  Petitioner gave Respondents notice of the Court’s order on November 10, 2022, by mail.  Respondents thus had until December 15, 2022, to serve response, and pay the monetary sanctions.

As of the filing date of the motion, Respondents have not served the responses or paid monetary sanctions in compliance with the Court’s order of October 25, 2022.  Respondents have thus disobeyed this Court’s order of October 25, 2022.  Further, Respondents have not opposed the motion, and have thus waived the right to argue that a terminating sanction is unwarranted.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) 

CONCLUSION AND ORDER

Therefore, the Court grants Petitioner’s motion for a terminating sanction, and dismisses the underinsured motorist claims of Respondents Michael Soroka and Talia Ohal with prejudice. 

Petitioner shall provide notice of this Court’s ruling and file a proof of service of such.