DIANE FISHER VS LOUIS KEARN, ET AL.

Tentative Rulings

Case Number: 18STLC10608    Hearing Date: February 27, 2020    Dept: 26

Fisher v. Kearn, et al.

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.010)

TENTATIVE RULING:

Defendant Coit Services, Inc.’s Motion for Terminating Sanctions is GRANTED. THE COURT HEREBY DISMISSES THE COMPLAINT WITH PREJUDICE.

ANALYSIS:

Plaintiff Diane Fisher (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Coit Services, Inc. (“Defendant Coit”) and others on August 14, 2018. On October 31, 2019, the Court granted Defendant Coit’s motion compelling Plaintiff’s responses to interrogatories and requests for production and request for monetary sanctions. (Minute Order, 10/31/19.) The responses were to be served by December 17, 2019. (Motion, Noel Decl., ¶¶7-9.) To date, Plaintiff has not served responses as ordered. accordingly, Defendant Coit moves for terminating sanctions. (Id. at ¶¶9-10.)

To date, no opposition has been filed to the Motion for Terminating Sanctions.

Discussion

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “The court may impose a terminating sanction by one of the following orders:

An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

An order staying further proceedings by that party until an order for discovery is obeyed.

An order dismissing the action, or any part of the action, of that party.

An order rendering a judgment by default against that party.”

(Code Civ. Proc., § 2023.030, subd. (d).)

The court finds that terminating sanctions are warranted here. Following the Court’s ruling regarding Defendant Coit’s discovery requests, Defendant Coit served notice of the order on Plaintiff by mail. (Notice of Ruling, filed 11/22/19; Motion, Noel Decl., ¶8 and Exh. A.) Despite notice of the Court’s order, Plaintiff never served responses to the discovery requests. (Motion, Noel Decl., ¶9.) Given the notice provided, the Court finds Plaintiff’s failure to serve responses to be a willful failure to comply with the October 31, 2019 order. Furthermore, although Plaintiff was properly served with the instant Motion for Terminating Sanctions, she has not opposed it.

Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Plaintiff’s compliance with the Court’s orders cannot be achieved through lesser sanctions. Indeed, it appears that Plaintiff has no intention of complying with the Court’s orders or prosecuting her claims against Defendant Coit. “The court [is] not required to allow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280.)

Conclusion

Defendant Coit Services, Inc.’s Motion for Terminating Sanctions is GRANTED. THE COURT HEREBY DISMISSES THE COMPLAINT WITH PREJUDICE.

Moving party to give notice.

Case Number: 18STLC10608    Hearing Date: October 31, 2019    Dept: 94

MOTION TO COMPEL RESPONSES TO FORM AND SPECIAL INTERROGATORIES; REQUESTS FOR PRODUCTION OF DOCUMENTS; TO DEEM THE TRUTH OF MATTERS IN REQUEST FOR ADMISSIONS AS ADMITTED; AND TO REQUEST FOR SANCTIONS

(CCP §§ 2030.290; 2031.300; 2033.280)

TENTATIVE RULING:

Defendants Coit Services CV, Inc., Coit Services, Inc., and Robert L. Kearn’s Motion to Compel Responses to Form and Special Interrogatories and Request for Production of Documents; to Deem the Truth of Matters in Request for Admissions as Admitted; and to Request for Sanctions is GRANTED. THE REQUESTS FOR ADMISSION ARE DEEMED ADITTED. RESPONSES TO THE INTERROGATORIES AND REQUESTS FOR PRODUCTION ARE TO BE SERVED BY PLAINTIFF WITHIN 20 DAYS OF SERVICE OF NOTICE OF THIS ORDER. PLAINTIFF IS FURTHER ORDERED TO PAY SANCTIONS OF $800.00 TO DEFENSE COUNSEL WITHIN 30 DAYS OF SERVICE OF NOTICE OF THIS ORDER.

SUMMARY OF COMPLAINT: Action for breach of contract, breach of bailment, fraud and embezzlement.

REQUEST FOR RELIEF: Order Plaintiff to serve responses to discovery requests and deem requests for admission admitted.

OPPOSITION: None filed as of October 22, 2019.

ANALYSIS:

On October 29, 2018, Defendants Coit Services CV, Inc., Coit Services, Inc., and Robert L. Kearn (collectively, “Moving Defendants”) served Form and Special Interrogatories, Request for Production of Documents, and Request for Admissions on Plaintiff Diane Fisher (“Plaintiff”). (Noel Decl. ¶ 3, Exh. A.) To date, Moving Defendants have not received any verified responses to the propounded discovery requests from Plaintiff. (Id. ¶ 5.)

Moving Defendants now bring the instant Motion to Compel Responses to Form and Special Interrogatories and Request for Production of Documents; to Deem the Truth of Matters in Request for Admissions as Admitted; and to Request for Sanctions (the “Motion”).

Due to the failure to respond to the propounded discovery requests, Plaintiff is ordered to serve verified responses, without objections, to Defendants’ Form Interrogatories, Special Interrogatories, and Request for Production within twenty (20) days from the date of Defendants serving a notice of this Order. (See Code Civ. Proc., §§ 2030.290; 2031.300.) The Requests for Admission are also deemed admitted against Plaintiff. Monetary sanctions are also awarded under Code of Civil Procedure sections 2033.280, 2030.290 and 2031.300. Given the simplicity of the Motions and the lack of opposition and reply, the Court finds that sanctions are appropriate in the amount of $800.00 based on two hours of attorney time billed at $400.00 per hour. (Motions, Noel Decl., ¶7.) Sanctions are to be paid within thirty (30) days from the date of Defendants serving a notice of this Order.

Moving party to give notice.