I. Background  

On October 28, 2021, plaintiff Raul Gomez (“Plaintiff”) filed this action against defendants Garen Akylan and Vahe Akliyan for injuries arising from activated rented machinery while Plaintiff was cleaning up leaves, branches, and logs. 

Defendants Garen Akylan and Vahe Akylan (erroneously sued as Vahe Akliyan) (“Defendants”) now move for terminating sanctions against Plaintiff to dismiss Plaintiff’s action with prejudice for failing to serve verified discovery responses in compliance with the Court’s September 8, 2023 and November 15, 2023 Orders pertaining the Defendants’ motions to compel discovery responses. Defendants request monetary sanctions in addition.  

Any opposition was due on or before February 13, 2024; none was filed.   

II. Motion for Terminating Sanctions 

Code of Civil Procedure § 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).)  “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.)   

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, 795-796.)   

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo, 84 Cal.App.3d at 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 Cal.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 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."  (Ibid.)  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, 971].) 

Here, Defendants assert they served set one of form interrogatories, special interrogatories, request for production of documents (RPDs), and request for admissions (RFAs) on May 18, 2023 on Plaintiff. On September 1, 2023, the Court the RFAs, set one, admitted against Plaintiff and ordered Plaintiff to pay monetary sanctions. (Min. Order, Sept. 1, 2023.) On September 8, 2023, this Court ordered Plaintiff to verified responses, without objections, to Defendants’ set one of form interrogatories, special interrogatories, and RPDs within 20 days, in addition to imposing monetary sanctions. (Min. Order, Sept. 8, 2023.) On July 26, 2023, Defendants served set two of form interrogatories and RFAs on Plaintiff. After the statutory time to respond had lapsed, Defendants granted Plaintiff a three-week extension to serve responses without objections because Plaintiff’s counsel stated that they were in the process of locating Plaintiff. However, no responses were served. On November 15, 2023, this Court deemed the RFAs, set two, admitted against Plaintiff, and ordered Plaintiff to serve verified responses to form interrogatories, set two, without objections within 15 days, in addition to imposing monetary sanctions. (Min. Order, Nov. 15, 2023.) Defense counsel declares that as of the date of filing, Plaintiff has not responded to any of the written discovery or paid monetary sanctions. (Mot. Mendoza Decl. ¶ 15.) 

There is no evidence that Plaintiff served responses to Defendants’ propounded discovery in compliance with this Court’s September 8, 2023 and November 15, 2023 Orders. Plaintiff does not oppose this motion and appears to have abandoned the case. Therefore, the Court concludes Plaintiff knew of his discovery obligations, knew of the Court Orders compelling his compliance, and failed to demonstrate his non-compliance was not willful. Given Plaintiff’s failure to comply with discovery obligations, failure to participate in litigation due to his purported absence, and apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse.    

Defendants’ motion for terminating sanctions is therefore GRANTED. Plaintiff’s action against Defendants is hereby dismissed, but without prejudice. However, the request for monetary sanctions is denied because the imposition of terminating sanctions is sufficient to meet the ends of justice.    

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 26th day of February 2024