Judge: Thomas D. Long, Case: 21STLC01133, Date: 2023-03-21 Tentative Ruling

Case Number: 21STLC01133    Hearing Date: March 21, 2023    Dept: 48

























      CASE NO.: 21STLC01133




Dept. 48

8:30 a.m.

March 21, 2023


On February 9, 2021, Plaintiff Connect by American Family filed this subrogation action against Defendant Haroldo Lopez, and on May 18, 2021, Plaintiff filed a first amended complaint (“FAC”).  Defendant filed an answer on December 2, 2021.

On January 10, 2023, Plaintiff filed a motion for terminating sanctions.  Defendant did not file an opposition.

A.        The Motion For Terminating Sanctions Is Granted.

A court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process.  (Code Civ. Proc., § 2023.030, subd. (d).)  Misuse of the discovery process includes failing to respond to discovery, unjustifiably making unmeritorious objections to discovery, and disobeying a court order to provide discovery.  (Code Civ. Proc., § 2023.010.)  “The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’  [Citation.]  Generally, ‘[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.’”  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (Los Defensores).)

Plaintiff argues that Defendant has abused the discovery process.  On April 18, 2022, Plaintiff served Form Interrogatories on Defendant.  Defendant did not respond.  On June 21, 2022, Plaintiff’s counsel sent a meet and confer letter, and Defendant did not respond.  On October 20, 2022, the Court granted Plaintiff’s motion to compel responses to the Form Interrogatories.  The Court ordered Defendant to pay $1,411.65 in sanctions and serve verified responses, without objections, to the Form Interrogatories within 21 days.  Defendant still has not responded to the Form Interrogatories.

Defendant’s abuse of the discovery process has stalled Plaintiff’s ability to pursue its case for eleven months, and trial is imminent.  The Final Status Conference is scheduled for May 1, 2023, and the trial is scheduled for May 15, 2023.

Under the totality of the circumstances, the Court concludes that less severe sanctions would be ineffective and that terminating sanctions are warranted.  The motion is therefore granted, and the Court will strike Defendant’s answer.

B.        Plaintiff Must Serve and File a Statement of Damages Before Entry of Default and Default Judgment.

Before a default may be entered, a Statement of Damages must be served “in an action to recover damages for personal injuries or wrongful death.”  (Code Civ. Proc., § 425.11, subds. (b)-(d).)  The FAC includes a claim for subrogation arising from Plaintiff’s “payments under the Insured's policy for the repair of the property and uninsured motorist bodily injury costs.”  (FAC ¶ 10.)  Thus, the underlying action that gave rise to this action was to recover damages for personal injuries, and Plaintiff’s subrogation claim is arguably “an action to recover damages for personal injuries.”

Although the FAC expressly demanded a judgment of $34,892.35, to ensure that Defendant has the required formal notice (see Code Civ. Proc., § 580, subd. (a)) and to avoid entering a void judgment, the Court will require a Statement of Damages in this action.

Accordingly, before Plaintiff files a request for entry of default, Plaintiff is ordered to serve and file a Statement of Damages in accordance with Code of Civil Procedure section 425.11, subdivisions (c)-(d).

C.        Conclusion

The motion is GRANTED.

Plaintiff’s request for monetary sanctions, to compensate it for bringing this motion, is granted.  (Code Civ. Proc., § 2023.030, subd. (a).)  Defendant is ORDERED to pay $1,410.00 in monetary sanctions to Plaintiff within 21 days.

The Court orders the Answer filed by Haroldo Lopez on December 2, 2021 STRICKEN.  (Code Civ. Proc., § 2023.030, subd. (d)(1).)

An Order to Show Cause Re: Entry of Default and Default Judgment is scheduled for May 22, 2023 in Department 48 at Stanley Mosk Courthouse.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.


         Dated this 21st day of March 2023





Hon. Thomas D. Long

Judge of the Superior Court