Judge: Richard S. Whitney, Case: 37-2020-00029050-CU-CO-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Contract - Other Motion Hearing (Civil) 37-2020-00029050-CU-CO-CTL PENNINGS VS SAUNDERS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFFS' MOTION TO STRIKE ANSWER AND ENTER DEFAULT OF DEFENDANT will be GRANTED, in part, if the conditions discussed below are not completed.

Plaintiffs HAYLEY PENNINGS and BRIAN PENNINGS ('Plaintiffs') finally filed a proof of service for this motion. The Court has authority to issue terminating sanctions for discovery abuses; however, '[b]ecause terminating sanctions are the most 'drastic' penalty, they are typically a 'last resort' to be 'used sparingly.'' (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1118 [Citation omitted].) Notwithstanding, 'the imposition of lesser sanctions is 'not an absolute prerequisite' to the imposition of terminating sanctions for violation of a court order.' (Id. [Citation omitted].) [S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective.

(Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191–192.) The Court is unconvinced at this point that lesser sanctions would be ineffective given that it is not fully known how much Defendant Trevor Saunders ('Defendant') has been personally knowledgeable and willful in failing to participate discovery. While the Court is sympathetic to Plaintiffs' struggles with obtaining discovery, the Court cannot ignore the potential impact that Defendant's attorney's medical issues have had on this litigation. However, Defendant may not indefinitely avoid his discovery obligations. To address Defendant's failures to comply with this Court's order, the Court will award Plaintiffs $4,000 in sanctions against Defendant if Defendant fails to comply with this Court's January 31, 2023 order and fails to file with the Court a substitution of attorney (none was ever filed for Erin Rounds) within thirty (30) calendar days. The Court continues this hearing until December 1, 2023, at 10:30 am.

If, by December 1, 2023, Defendant has not complied with this Court's orders, the Court will very likely grant a future motion for terminating sanctions by Plaintiffs.

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