Case Number: BC610032??? Hearing Date: October 13, 2016??? Dept: 98
JOSEPHINE KOH,
Plaintiff,
vs.
TENET HEALTHCARE CORPORATION,
et al.,
Defendants.
Case No.: BC610032
[TENTATIVE] ORDER RE: DEFENDANT?S MOTION FOR TERMINATING SANCTIONSDept. 98
1:30 p.m.
October 13, 2016
On February 10, 2016, Plaintiff Josephine Koh (?Plaintiff?) filed this action for medical malpractice. On July 18, 2016, Defendant therefore filed motions to compel Plaintiff?s responses to Defendant?s outstanding discovery requests. On August 19, 2016, the Court granted Defendant?s motions and ordered Plaintiff to provide discovery responses and pay monetary sanctions in the amount of $920.00. Plaintiff has failed to comply with the August 19, 2016 Order. Defendant therefore moves for terminating sanctions.
The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. Cal. Code of Civ. Proc., ? 2023.030(d). Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. Id., ?? 2023.010(d), (g). A terminating sanction may be imposed by an order striking out the pleadings in whole or in part, staying further proceedings by that party until an order for discovery is obeyed, dismissing part or all of the action, or rendering a judgment by default. Id., ?? 2023.030(d)(1)-(4). ??Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply ? and (2) the failure must be willful.?? Liberty Mut. Fire Ins. Co. v. LcL Adm?rs, Inc. (2008) 163 Cal.App.4th 1093, 1102. Terminating sanctions should not be ordered lightly, but ?where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.? Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.
The Court finds that Plaintiff has engaged in misuse of the discovery process both by failing to respond to Defendant?s discovery requests and by disobeying a court order to provide discovery. The issuance of the August 19, 2016 Order and the imposition of sanctions has not produced compliance from Plaintiff. The Court concludes that anything less severe than a terminating sanction would not result in compliance. Further, there is no evidence suggesting that the failure to comply with the Order was not willful.
As Plaintiff?s failure to comply with a court order and provide discovery was willful, preceded by a history of abuse, and less severe sanctions have failed to produce compliance, Defendant?s Motion for terminating sanctions is GRANTED.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 13th day of October, 2016
Hon. Holly J. Fujie
Judge of the Superior Court