Judge: Thomas S. Mcconville, Case: "AbdelH.Chehade,asTrusteeoftheAbdelChehadeLivingTrust,datedApril11,2012v.Freese", Date: 2023-07-31 Tentative Ruling

Plaintiffs/Cross-Defendants (“Plaintiffs”) Abdel H. Chehade and Ramzie Chehade’s motion for terminating sanctions against Defendant/Cross-Complainant (“Defendant”) Carl Caserta is DENIED. 

Before a court imposes a terminating sanction against a party, that party must have (1) failed to comply with a court order, and (2) the failure to comply must have been willful.  Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal. App. 4^th 1093, 1102.    Plaintiffs have established that Defendant has failed to comply with this court’s order of March 13, 2023 compelling Defendant to comply with discovery requests propounded by Plaintiffs.  Indeed, Defendant concedes this point.  (Caserta Decl.) 

The challenge is the second prong related to willfulness.  Plaintiffs have shown Defendant has not engaged in the discovery process; failed to respond to motions to compel; failed to attend a court hearing; failed to comply with the March 13, 2023 order; and engaged in a pattern of discovery abuses that resulted in prior terminating sanctions being imposed against Defendant on his cross-complaint (Minute Order 9/29/22).  However, Defendant has explained his reasons for his conduct by describing various medical and other challenges he has encountered.  Defendant also states he will respond to the past-due discovery in short order.  (Caserta Decl. at 8).  His counsel has likewise provided a declaration that provides further details.

Based on these circumstances, the court cannot find Defendant’s non-compliance with the court’s order to be willful.  Of course, should Defendant fail to comply – as he has represented to the court in his declaration – this finding may change.

Nevertheless, because Plaintiffs only secured Defendant’s renewed focus on this case by filing the current motion, monetary sanctions are appropriate.  (CCP 2023.030(a)).  Defendant is ordered to pay Plaintiffs $2,205.20 in fees and costs through Plaintiffs’ counsel within 30 days of notice of this order.

Plaintiffs shall give notice.