SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiff Gerardo Rodriguez-Huerta (“Plaintiff”) filed this action against East Willow, LLC, Petrolion, Inc., Tesoro Refining & Marketing Company LLC, BP West Coast Products, LLC, BP Products LLC, BP Products North America Inc., and BP America Inc. for damages resulting from automatic sliding doors at an entrance, which closed without warning and struck Plaintiff.¿Plaintiff is currently in pro per.  

Defendants Petrolion, Inc., BP Products North America Inc. and Tesoro Refining & Marketing Company LLC (“Defendants”) now move for terminating sanctions against Plaintiff to dismiss Plaintiff’s action because of Plaintiff’s misuse of the discovery process by failing to serve responses to written discovery and failing to comply with the Court’s August 7, 2023 order pertaining to the Defendants’ motions to compel responses to the subject discovery and to appear for Plaintiff’s deposition.  

Any opposition was due on or before September 22, 2023; no opposition 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).)  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, 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 submit that Plaintiff failed to comply with the Court’s August 7, 2023 Order compelling Plaintiff to serve verified responses, without objections, to Defendants’ set one of form interrogatories, special interrogatories, and request for production of documents within 20 days. (Min. Order, Aug. 7, 2023.) Furthermore, Defendants submit Plaintiff failed to comply with the Court’s Order compelling Plaintiff to appear for his deposition at a date, time, and location noticed by Defendants. (Ibid.) The ruling was effective upon Defendants paying an additional filing fee. (Ibid.) Defendants filed proof of payment of the additional filing fee. (Notice Proof of Payment, Aug. 7, 2023.) On August 9, 2023, Defendants served by email and U.S. mail a deposition notice on Plaintiff, setting the deposition for August 24, 2023. After service of the deposition notice, Plaintiff failed to appear for his remote deposition on August 24, 2023.  

On n August 9, 2023, Defendants served on Plaintiff notice of the Court’s August 7, 2023 ruling. (Decl. Harmeling, ¶7). Defense counsel declares no responses to written discovery have been served. (Id. at ¶ 10.) Plaintiff did not respond to Defendants’ deposition notice. (Id. at ¶ 9.) Further, 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 Order compelling his compliance, and failed to demonstrate her non-compliance was not willful. Given Plaintiff’s prior failure to comply with discovery obligations, failure to meet and confer with defense counsel, and apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse. 

Moving Defendants request terminating sanctions to dismiss Plaintiff’s Complaint against all defendants in this action with prejudice. However, there is no basis for terminating sanctions to apply to the other named defendants, especially as there exists no Court order or history of abuse pertaining to those defendants. Therefore, terminating sanctions are imposed at this time, but limited specifically to moving Defendants Petrolion, Inc., BP Products North America Inc. and Tesoro Refining & Marketing Company LLC.  

Defendants’ motion for terminating sanctions is GRANTED; Plaintiff’s action is hereby dismissed, without prejudice, as to Defendants Petrolion, Inc., BP Products North America Inc. and Tesoro Refining & Marketing Company LLC only.  

 

Moving Defendants are ordered to give notice.