Moving Party: Defendant Gilbert Jody
Responding Party: Unopposed.
Defendant Gilbert Jody’s Motion for Terminating Sanctions is GRANTED.
Moving Defendant seeks an order granting terminating sanctions and monetary sanctions.
When a party fails to obey a court order, the full range of discovery sanctions becomes available. (Code Civ. Proc. §§ 2023.010(g), 2023.030.) The behavior justifying terminating sanctions includes repeated refusals to respond to discovery requests, violation of previous court orders, and destruction of evidence. Terminating sanctions are appropriate when a chronic pattern of delay or evasiveness by the defaulting party is egregious enough to warrant denial of a trial on the merits. (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.)
Moving Defendant have shown that Plaintiff has violated the court’s order on 8-2-21 compelling his deposition.
In order to justify terminating sanctions, responding party’s failure to comply must be willful. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Although the moving party bears the burden of proof, the moving party need only show the failure to obey earlier discovery orders. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.) Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his/her conduct – i.e., the burden is on the disobedient party to establish the lack of willfulness of his/her duty to perform. (Motown Record Co. v. Sup. Ct. (1984) 155 Cal.App.3d 482, 489.)
Moving Defendant has presented enough evidence showing that Plaintiff has willfully violated the court’s discovery order. There is no opposition to the Motion. Thus, the Court finds that the disobedience was willful.
Defendant requests monetary sanctions in the Motion and in the Declaration. The Court denies the request for monetary sanctions due to Defendant’s failure to request them in the Notice of Motion. (Code Civ. Proc. § 1010; California Rule of Court, rule 3.1110(a); see People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726.)
Based on the foregoing, the Court GRANTS Moving Defendant’s Motion for Terminating Sanctions. Plaintiff Robert Fierro’s Complaint is hereby dismissed as to Moving Defendant Gilbert Jody. Moving Defendant to prepare and file a judgment for the Cross-Complaint within 10 days of this order.
Moving Defendant to give notice.