ANDY OBINNA VS DORIS ONUOHAH ET AL

Tentative Rulings

Case Number: BC668794    Hearing Date: August 05, 2020    Dept: 48

[TENTATIVE] ORDER RE MOTION FOR TERMINATING SANCTIONS

On March 2, 2020, the Court granted Plaintiff Andy Obinna’s motions to compel discovery against Defendants Jerry Ikogho and Doris Onuohah, ordered Defendants to serve verified responses without objections within 20 days, and ordered Defendants to pay monetary sanction within 39 days.

On May 29, 2020, Plaintiffs Andy Obinna and Zsuzsanna Obinnane filed a motion for terminating sanctions against Defendants. Plaintiffs state that Defendants did not provide the responses or pay the sanctions.

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 comply. (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.)

Here, the Court cannot conclude that Defendants willfully failed to comply with discovery orders justifying termination. Defendants attach verified responses signed in February 2020, state that in April 2020 they reserved those responses with the preliminary statement removed, and attach a proof of service showing service of verified discovery on April 15, 2020. Plaintiffs do not address the April 15, 2020 service of the discovery responses.

Also, the motions to compel were all brought by Plaintiff Andy Obinna. Plaintiff Zsuzsanna Obinnane did not bring any motions to compel, and therefore Defendants have not violated any order to provide discovery to her.

The failure to pay a monetary sanctions is not a basis for terminating sanctions. Plaintiff may enforce the order to pay a monetary sanction as a judgment. (See, e.g., Newland v. Superior Court (1995) 40 Cal.App.4th 608.)

Accordingly, the motion is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.