SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

Plaintiff Jasmine Hermosillo (“Plaintiff”) filed this action against defendants O’Reilly Auto Enterprises, LLC, O’Reilly Automotive Stores, Inc., and Oscar Navarro for damages arising from a slip and fall. On July 28, 2022, the parties stipulated to dismiss O’Reilly Automotive Stores, Inc. without prejudice. 

At this time, Plaintiff moves for issue sanctions and evidentiary sanctions precluding O’Reilly Auto Enterprises, LLC (“O’Reilly”) from offering evidence disputing liability or disputing Plaintiff’s damages at trial, in addition to monetary sanctions, or in the alternative terminating sanctions for disobeying the Court’s May 9, 2023 Order compelling O’Reilly to serve verifications/verified responses to form interrogatories, set one, Nos. 1.1., 9.2, and 15.1, special interrogatories, set one, No. 23, and RPDs, set one, No. 74 within ten days; the objections contained in each response are not waived. (Min. Order, May 9, 2023.) 

Any opposition was due on or before October 6, 2023. On October 18, 2023, just one day before the hearing, O’Reilly filed an ex parte application to continue the hearing so that it may file an opposition to the motion. The Court, in its discretion, will consider O’Reilly’s untimely opposition attached to the ex parte application.  

 

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, 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, Plaintiff submits that O’Reilly failed to comply with the Court’s May 9, 2023 Order compelling serve verifications/verified responses to form interrogatories, set one, Nos. 1.1., 9.2, and 15.1, special interrogatories, set one, No. 23, and RPDs, set one, No. 74 within ten days. Plaintiff avers O’Reilly has not provided further discovery responses or paid monetary sanctions to date in violation of the Court’s May 9, 2023 Order, and that these discovery requests are material and necessary to Defendant’s defense and Plaintiff’s claim.  

Plaintiff requests both issue and evidentiary sanctions as to the following:  

 

“1. That Defendant owned, operated, leased, maintained, inspected, supervised, managed, and controlled O’Reilly Auto Parts, located at 15725 Downey Avenue in Paramount, California on May 15, 2020. 

 

2. That Defendant was negligent in the use or maintenance of O’Reilly Auto Parts, located at 15725 Downey Avenue in Paramount, California.  

 

3. That Defendant’s negligence was the sole cause of the slip and fall incident that occurred on May 15, 2020 at O’Reilly Auto Parts, located at 15725 Downey Avenue in Paramount, California. (“SUBJECT INCIDENT”). 

 

4. That Plaintiff was injured in SUBJECT INCIDENT. 

 

5. That Defendant’s negligence was the sole cause of Plaintiff’s injuries. 

 

6. That Defendant’s negligence was a substantial factor in causing Plaintiff's injuries. 

 

7. That all of Plaintiff's past medical treatment related to her injuries sustained in SUBJECT INCIDENT was reasonable and necessary. 

 

8. That the cost of all of Plaintiff's past medical treatment related to her injuries 

 

9. That all of Plaintiff's future medical treatment related to her injuries sustained in the SUBJECT INCIDENT is reasonable and necessary. 

 

10. That the cost of Plaintiff's future medical treatment related to her injuries sustained in the SUBJECT INCIDENT is reasonable. 

 

11. That Plaintiff is reasonably certain to need all the future medical treatment related to her injuries sustained in the SUBJECT INCIDENT. 

 

12. That Plaintiff did not contribute to the cause of the SUBJECT INCIDENT.” 

(Mot. at p. 7, lines 6-24.) 

However, Defendant’s failure to abide by the Court’s order is limited to certain responses, and not the entirety of the discovery propounded by Plaintiff.  

More particularly, special interrogatory no. 23 requested Defendant to, “State each fact that supports or tends to support any affirmative defense YOU allege to the allegations of the Complaint.” (Stepanyan Decl.; Exh 2.) Defendant’s May 2, 2023 supplemental response to no. 23 responded that investigation is still ongoing. (Id. at Exh. 8.) 

Form interrogatories No. 1.1. requests identification of the persons answering the interrogatories, No. 9.2 request Defendant to identify any documents that support the existence of any item of damages Defendant claimed in 9.1, and 15.1 requests Defendant to identify each denial of a material allegation and each special or affirmative defense in the pleadings. (Id. at Exh. 1.) On October 17, 2022, Defendant substantively responded to No. 1.1. (Id. at Exh. 5.) As for 9.2, Defendant responded not applicable based on the response to 9.1, which was “No.” (Id. at Exh. 9.) Lastly, Defendant’s response to 15.1 is similar to Defendant’s response to special interrogatory no. 23. (Id. at Exh. 5.) 

RPD No. 74 requested, “All DOCUMENTS which YOU contend support your defense, if any, that Plaintiff assumed the risk.” (Id. at Exh. 3.) On October 17, 2022, Defendant responded that upon diligent search and reasonable inquiry, Defendant was not in possession, custody and/or control of any additional responsive documents or items at this time. (Id. at Exh. 6.) 

The May 9, 2023 Order did not compel Defendant to substantively change or alter its responses to Plaintiff. Rather, the order pertained to Defendant serving verifications to the responses that contained substantive answers. There is no evidence that Defendant served verifications as ordered, and therefore those responses are tantamount to no responses at all. However, the scope of Plaintiff’s requests for evidentiary and issue sanctions are overbroad, because they encompass more than the particular discovery requests at issue in terms of Defendant’s defenses to Plaintiff’s allegations. The Court does not find all of Plaintiff’s evidentiary and issue sanction requests to be warranted.  

O’Reilly’s untimely opposition does not address the issues above regarding lack of verification, nor does O’Reilly demonstrate that it has since complied with the Court’s May 9, 2023 order. Therefore, the Court concludes O’Reilly knew of its discovery obligations, knew of the Court Order compelling its compliance, and failed to demonstrate its non-compliance was not willful. Given O’Reilly’s failure to comply with discovery obligations, and failure to meet and confer with Plaintiff’s counsel, the Court finds lesser sanctions warranted.  

Because the scope of the discovery requests at issue are particular to Defendant’s defenses to Plaintiff’s allegations and whether Plaintiff assumed the risk, Plaintiff’s motion is GRANTED IN PART. The Court imposes issue sanctions only as to Plaintiff’s request that Plaintiff did not contribute to the incident and that Defendant was the sole cause of Plaintiff’s slip and fall. The Court declines to impose additional evidentiary and monetary sanctions at this time, as the imposition of issue sanctions here is sufficient to meet the ends of justice.