Judge: Michael P. Linfield, Case: 22STCV18744, Date: 2023-05-04 Tentative Ruling
Case Number: 22STCV18744 Hearing Date: May 4, 2023 Dept: 34
SUBJECT: Motion for Terminating Sanctions
Moving Party: Defendants
PHH Mortgage Corporation; Deutsche Bank National Trust Company as Trustee for
IndyMac INDX Mortgage Loan Trust 2007-AR7, Mortgage Pass-Through Certificates
Series 2007-AR7; Western Progressive; and Western Progressive, LLC
Resp. Party: None
Defendants’ Motion for Terminating Sanctions
is GRANTED.
Plaintiff’s Complaint is DISMISSED.
BACKGROUND:
On June 8, 2022,
Plaintiff Llewellyn C. Werner, in propria persona, filed his Verified Complaint
against Defendants PHH Mortgage Corporation (“PHH”); Deutsche Bank National
Trust Company as Trustee for IndyMac INDX Mortgage Loan Trust 2007-AR7,
Mortgage Pass-Through Certificates Series 2007-AR7 (“Deutsche Bank as
Trustee”); Western Progressive; and Western Progressive, LLC (“Western
Progressive” and, collectively, “Defendants”).
On October 6, 2022,
the Court: (1) sustained with leave to amend Defendants’ Demurrer as to the
first cause of action listed in the Complaint; (2) sustained without leave to
amend Defendants’ Demurrer as to the second, third, eighth, and ninth causes of
action listed in the Complaint; and (3) overruled Defendants’ Demurrer as to
the fourth, fifth, sixth, seventh, and tenth causes of action listed in the
Complaint.
On October 25, 2022,
Defendants filed their Verified Answer.
On January 31, 2023,
the Court granted Defendants’ discovery motions and awarded monetary sanctions
for Defendants and against Plaintiff.
On Mach 16, 2023,
Defendants filed their Motion for Terminating Sanctions.
On April 17, 2023,
Defendants filed their Reply in Support of Unopposed Motion for Terminating
Sanctions. Defendants concurrently filed their Proposed Order.
ANALYSIS:
I.
Legal Standard
Code of Civil Procedure section 2023.030 gives
the court the discretion to impose sanctions against anyone engaging in a
misuse of the discovery process. A court may impose terminating sanctions by
striking pleadings of the party engaged in misuse of discovery or entering
default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery
order is sufficient for the imposition of terminating sanctions. (Collison
& Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions
are appropriate when a party persists in disobeying the court's orders. (Deyo
v. Kilbourne (1978) 84 Cal.App.3d 771, 795–96.)¿
¿
A terminating sanction is a "drastic
measure which should be employed with caution." (Id. at p. 793.)
"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." (Mileikowsky v. Tenet Healthsystem (2005) 128
Ca1.App.4th 262, 279-280.)¿¿
¿
While the court has discretion to impose
terminating sanctions, these 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." (Deyo, supra, 84
Cal.App.3d at p. 793.) "[A] court is empowered to apply the ultimate
sanction against a litigant who persists in the outright refusal to comply with
his discovery obligations." (Id.) Discovery sanctions are not to be
imposed for punishment, but instead are used to encourage fair disclosure of
discovery to prevent unfairness resulting for the lack of information. (See Midwife
v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as
stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 9711.)¿
¿
"A trial court has broad discretion to
impose discovery sanctions, but two facts are generally prerequisite to the
imposition of nonmonetary sanctions . . . (1) absent unusual circumstances,
there must be a failure to comply with a court order, and (2) the failure must
be willful." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th
1315, 1327; but see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291
["willfulness is no longer a requirement for the imposition of discovery
sanctions."].)¿
II.
Discussion
Defendants move the Court to dismiss with
prejudice this action, entering judgment in Defendants’ favor. (Motion, p.
5:4–5.) Defendants request that the Court continue trial by six months if the
Court enters a lesser sanction. (Id. at p. 5:5–6.)
Defendants argue that terminating sanctions
are the proper remedy because: (1) Plaintiff has failed to respond to discovery
requests; (2) Plaintiff has disobeyed the Court’s order to respond to discovery
requests; and (3) a lesser sanction would be a wasted act because Plaintiff
would still fail to respond. (Id. at pp. 3–4.)
The Court agrees with Defendants’ arguments.
Other than filing his verified complaint,
Plaintiff has not participated in this litigation. He did not oppose Defendants’ demurrer,
motions to compel discovery, or motion for terminating sanctions. He did not appear at the Case Management Conference.
There is no indication that Plaintiff has served discovery responses or that he
has complied with the Court’s Order dated January 31, 2023. This is despite the
Court’s repeated reminders in the Court’s Order, reminding Plaintiff to that he
must comply with the rules of court and that he must comply with his statutory
duties regarding discovery. (See, e.g., Minute Orders of 10/6/2022 and
1/31/2023.)
As noted above, Plaintiff has not opposed
this motion.
The
Court recognizes that “[p]roviding access to justice for
self-represented litigants is a priority for California courts.” (California Rules of Court, rule 10.960,
subdivision (b).) After all, “when a
litigant is self-represented, a judge has the discretion to take reasonable
steps, appropriate under the circumstances and consistent with the law and the
canons, to enable the litigant to be heard.” (Holloway v. Quetel (2015)
242 Cal.App.4th 1425, 1434.)
However, the Court also recognizes that “A party proceeding in propria persona is to be treated like
any other party and is entitled to the same, but no greater[,] consideration
than other litigants and attorneys.” (Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 985 [cleaned up].) Indeed, “the in propria persona litigant is held to
the same restrictive rules of procedure as an attorney.” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956,
958, fn. 1; see also Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246-1247.)
There is no indication that any sanction
would result in Plaintiff complying with this Court’s previous orders.
III. Conclusion
Defendants’ Motion for Terminating Sanctions
is GRANTED.
Plaintiff’s Complaint is DISMISSED.