SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On May 9, 2023, in pro per Plaintiff Loretta Ann McIlwain (“Plaintiff”) filed her First Amended Complaint (“FAC”) against Michelle Proyect (“Defendant”) and Does 1 to 10, wherein Plaintiff alleges she fell after her left foot slipped between the space of concrete pavers on Defendant’s property. On July 21, 2023, Defendant filed her Answer to the FAC. 

Defendant now moves for terminating sanctions against Plaintiff to dismiss Plaintiff’s action by failing to serve verified discovery responses in compliance with the Court’s August 16, 2023 Order pertaining to the Defendant’s motions to compel responses discovery. Defendant additionally moves for monetary sanctions.  

Any opposition was due on or before November 22, 2023. The motion is unopposed.   

 

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, Defendant asserts that she served her initial set of written discovery on March 29, 2023 on Plaintiff. No responses were served. Defendant then filed motions to compel Plaintiff’s responses to discovery on July 11, 2023. On August 16, 2023, the Court granted Defendant’s motions to compel and Plaintiff was ordered to serve verified responses to set one of form interrogatories, special interrogatories, and requests for production, without objections, within twenty days, and to pay monetary sanctions. (Min. Order, Aug. 16, 2023.) 

 Here, Defendant submits that Plaintiff failed to comply with the Court’s August 16, 2023 Order. Defendant served the Notice of Ruling on August 23, 2023. (Hall Decl. ¶ 5.) Defense counsel avers that prior to filing the motion, a letter was sent to Plaintiff on September 19, 2023 requesting compliance with the Court’s Order. (Id. at ¶ 6.) To date, Plaintiff has failed to serve verified discovery responses and pay monetary sanctions. (Ibid.)  

There is no evidence that Plaintiff served responses to Defendant’s propounded discovery in compliance with the Court’s August 16, 2023 Order. Plaintiff does not oppose this motion and appears to have abandoned the case. Therefore, the Court concludes Plaintiff knew of her discovery obligations, knew of the Court Order compelling its compliance, and failed to demonstrate her non-compliance was not willful. Given Plaintiff’s 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.    

Defendant’s motion for terminating sanctions is therefore GRANTED. Plaintiff’s action against Defendant is hereby dismissed. However, the request for monetary sanctions is denied, as the imposition of terminating sanctions here is sufficient to meet the ends of justice.