Judge Theodore R. Howard, Case 19-1115323 2022-09-08 Tentative Ruling

Judge: Theodore R. Howard, Case: 19-1115323, Date: 2022-09-08 Tentative Ruling

The unopposed motion by defendants/cross-complainants Asmath Nohr (“Nohr”), and Crestview Dynamics (“Crestview”) (together “defendants”) for issue, evidence and terminating sanctions, striking all pleadings filed by plaintiff Margareta Boiciuc (“Margareta”), dismissing the complaint and imposing $2500 in monetary sanctions against Margareta and cross-defendant Tamara Boiciuc (“Tamara”) (together “Boiciucs”) is GRANTED IN PART AND DENIED IN PART.

Defendants seek terminating sanctions against Margareta based on her failure to respond to discovery propounded on 12/27/2019, including form interrogatories (“FROGS”), requests for production of documents (“RFPS”) and requests for admission (“RFAS”) and her failure to obey two court orders (entered on 12/13/2021 and 4/14/2022) compelling responses to that discovery, citing CCP §§2030.290(c) and 2023.010 (d) and (g).

CCP §2030.290(c) authorizes the court to impose an issue, evidence or terminating sanction when a party fails to serve a timely response to interrogatories and then fails to obey an order compelling responses. (See also CCP §2023.030(d)(3) authorizing the court to impose a terminating sanction by an order dismissing the action.) Such conduct constitutes a misuse of the discovery process. (CCP §2023.010(d), (g))

The court has broad discretion to sanction a party who engages in the misuse of the discovery process. (Siry Investment, L.P. v. Farhkhondehpour (“Siry”) (2020) 45 Cal.App.5th 1098, 1116)

The court determines if a lesser sanction would be effective at inducing the noncompliant party to produce discovery, and considers the totality of the circumstances including history of abuse, whether prior court orders have gone unheeded, the number of formal and informal attempts to obtain the discovery, whether noncompliance was willful, whether noncompliance persisted despite warnings from the

court that greater sanctions might follow, whether noncompliance encompasses all or only some of the issues in the case and the extent of the detriment to the propounding party that flows from the inability to obtain the discovery responses. (Siry, supra, 45 Cal.App.5th at p. 1117-1118).

Terminating sanctions may be appropriate as a first measure in extreme cases where a litigant violates a court order and persists in outright refusal to comply with her discovery obligations. (Id. at p. 1118) Imposition of lesser sanctions is not an absolute prerequisite to imposing a terminating sanction. (Ibid.)

Where the violation is willful, preceded by a history of abuse and the evidence demonstrates that lesser sanctions will not produce compliance with the discovery, the trial court is justified in imposing the ultimate sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994).

Nohr propounded his first set of FROGS, RFPS and RFAS on 12/27/2019, shortly after the complaint was filed. (See ROA #74, Multani Decl. ¶5) At the time of the hearing on this motion, Margareta will have had over 2 years and 8 months to provide responses and nearly nine months to respond from the date the court first ordered her to do so. Yet, she still failed to comply with her discovery obligations.

The court set an OSC re: dismissal of the complaint for failure to provide the discovery responses and comply with the court order to do so placing plaintiff on notice of potential dismissal if she persisted with the misuse of the discovery process. The court even gave Margareta one final opportunity on 4/14/2022 to answer the discovery within 20 days, but once again this court’s order was ignored. The only reason provided by Margareta for such failures is that she is looking for an attorney to represent her, not that there is some impediment to her providing the discovery responses.

Given all of the circumstances, the court can only conclude that imposition of lesser sanctions will not compel Margareta to provide the discovery responses which defendant needs in order to prepare for trial.

The court therefore GRANTS the motion for terminating sanctions and orders Margareta Boiciuc’s complaint against Asmath Nohr and Crestview Dynamics, LLC dismissed, in its entirety, with prejudice.

Monetary Sanctions

In addition, Margareta Boiciuc is ordered to pay $675 in monetary sanctions to defendants within 60 days (CCP §2030.290(c)) for the reasonable expenses including attorney’s fees incurred by defendants in connection with this motion. (See CCP §2023.040; Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791).)

Reduced sanctions are awarded based on the complexity of the motion, and the lack of opposition and reply briefs.

Although defendants ask for monetary sanctions to be imposed jointly and severally against Margareta and Tamara, there is no evidence that Tamara engaged in the misuse of the discovery process. Thus, the motion for an order imposing monetary sanctions against Tamara is DENIED.

Moving parties are ordered to give Notice of Ruling and submit a proposed Order.