Judge: William A. Crowfoot, Case: 20STCV48798, Date: 2022-07-25 Tentative Ruling

Case Number: 20STCV48798    Hearing Date: July 25, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           This personal injury action arises out of a motor vehicle versus pedestrian accident that occurred on September 25, 2019, at the intersection of Cosmo Street and Hollywood Boulevard in Los Angeles, California. Specifically, this is a motor vehicle versus motorized scooter case.

          Plaintiff Cameron So filed this lawsuit against Defendant Malcolm Foster Smith on December 22, 2020. Defendant filed and served his answer to Plaintiff’s Complaint and subsequently, on December 16, 2021, served Plaintiff with Form Interrogatories, Special Interrogatories, and Request for Production of Documents. (Lezon Decl. ¶ 2 and 8.)   The responses were due on January 19, 2022. (Id. ¶ 4,7,10.)

On February 8, 2022, Plaintiff’s counsel filed a motion to be relieved as counsel which was subsequently granted on March 11, 2022. (Id. ¶ 11-13.)

Plaintiff failed to respond to Defendant’s discovery request and on March 11, 2022, Defendant filed a Motion to Compel Plaintiff’s responses. ( Id ¶ 15.) On April 11, 2022, Defendant’s Motions to Compel were granted. Plaintiff’s discovery responses were due by May 17, 2022.  (Id. ¶ 20-21.) Defendant sent Plaintiff multiple meet and confer letters. (Id. ¶ 22-30.) To date, Defendant has not received a response to the discovery request. (Id. ¶ 31.)

II.      LEGAL STANDARDS

Where a party fails to obey an order compelling answers to 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); 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 determent 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.)  If a lesser sanction fails to curb abuse, a greater sanction is warranted.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.”  (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.)  Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

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.)  Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply.  (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.  (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

III.     DISCUSSION

Plaintiff filed no opposition to this Motion.  The Court finds that terminating sanctions are warranted.  Plaintiff has failed to respond to discovery requests, even after the April 11, 2022, Court Order.  In sum, the Court can conclude that Plaintiff willfully failed to comply with discovery obligations and that a lesser sanction would not produce compliance.

Defendant also seeks monetary sanctions in connection with this motion pursuant to CCP §§ 2030.290 and 2031.300.  Monetary sanctions for one hour for preparing the motion at the reasonable rate of $185.00 per hour, plus filing fees of $60.00 as costs, for a total amount of $245.00 would be reasonable.  However, as the Court is imposing terminating sanctions, it will not award monetary sanctions. 

IV.     CONCLUSION

The Motion for terminating is GRANTED.

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.