Judge: William A. Crowfoot, Case: 20STCV39698, Date: 2022-10-05 Tentative Ruling

Case Number: 20STCV39698    Hearing Date: October 5, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On October 15, 2020, plaintiff Steven Feinberg (“Plaintiff”) filed this action against defendant 760 South San Pedro Street LLC (“Defendant”) arising from a slip and fall that occurred on November 5, 2018.  On August 11, 2022, the Court granted Defendant’s 5 discovery motions which sought orders compelling Plaintiff to serve discovery responses, attend his deposition, and attend an independent medical examination.  On September 7, 2022, Defendant filed this motion to dismiss on the grounds that Plaintiff disobeyed the Court’s orders. 

Where a party fails to obey an order compelling discovery, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.  (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c), 2025.450, subd. (h), 2032.410; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  The 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 failure to respond to an authorized method of discovery or disobeying a court order to provide discovery.  (Code Civ. Proc., § 2023.010, subds. (d), (g).)  A terminating sanction may be imposed by an order dismissing part or all of the action.  (Code Civ. Proc., § 2023.030, subd. (d)(3).) 

The court should consider the totality of the circumstances, including 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 discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers.  (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.  (Deyo v. Kilbourne, 84 Cal.App.3d 771, 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

Plaintiff filed no opposition to this motion and it is undisputed he failed to serve responses to discovery, failed to attend his deposition or IME, and disobeyed court orders to do so.  Defendant served a Notice of Ruling on Plaintiff.  Therefore, the Court concludes Plaintiff knew of his discovery obligations, knew of the court orders compelling his compliance, and failed to show his noncompliance was not willful.  Given Plaintiff’s prior failures to comply with discovery obligations, failures to meet and confer with defense counsel, and apparent disinterest in prosecuting this action, Defendant’s Motion for terminating sanctions is GRANTED and Plaintiff’s action is hereby dismissed. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.