DEBORAH PALMER VS KENNETH EASON ET AL

Tentative Rulings

Case Number: BC631545    Hearing Date: February 25, 2020    Dept: 27

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS

On August 24, 2016, plaintiff Deborah Palmer filed this action against defendants Kenneth Eason (“Eason”) and Parkway Motorcars Valencia, Inc. (“Parkway”) (collectively, “Defendants”) for injuries sustained in a motor vehicle accident. Parkway is a car dealership and Plaintiff was on a test drive as Eason’s passenger when Eason lost control rounding a curve.

On April 5, 2019, the Court granted Defendants’ motions to compel discovery responses and deem RFAs admitted. The Court ordered Plaintiff to provide discovery responses. Plaintiff subsequently served responses but did not include verifications. Defendants brought a second round of motions to compel and a motion for terminating sanctions. On July 19, 2019, the Court denied the motion for terminating sanctions and ordered Plaintiff to serve signed verifications by August 16, 2019. The Court stated the denial was without prejudice to Defendant filing another motion for terminating sanctions if Plaintiff failed to comply with the order. Defendants served a notice of ruling on Plaintiff on July 22, 2019, along with the verification forms for Plaintiff’s signature.

Defendants state Plaintiff has not served the verifications. Defendants move for terminating sanctions and request $1,060.00 in sanctions. Plaintiff did not file an opposition.

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.)

Plaintiff filed no opposition to this motion, failed to serve verifications, and disobeyed two court order to do so. Based on the record summarized above, the Court concludes Plaintiff knew of her discovery obligations and knew of the court order compelling her compliance. Given Plaintiff’s prior failures to comply with discovery obligations and orders and apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse.

Accordingly, Defendants’ Motion for terminating sanctions is GRANTED and Plaintiff’s action is hereby dismissed. As the Court is granting terminating sanctions it declines to also impose monetary sanctions.

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.