Case Number: 22STCV39766 Hearing Date: July 8, 2025 Dept: 68
Dept. 68
Date: 7-8-25 a/f 8-5-25 (via 4-18-25 ex parte order)
Case #: 22STCV39766
Trial Date: 5-11-26
TERMINATING SANCTIONS
MOVING PARTY: Plaintiff, Angelica Montano
RESPONDING PARTY: Unopposed/Defendant, El Zarape Cocina On Melrose Inc.
RELIEF REQUESTED
Motion for Terminating Sanctions
SUMMARY OF ACTION
On December 21, 2022, plaintiff Angelica Montano filed a wage and hour complaint against El Zarape Melrose Corp., El Zarape Fountain Inc., El Zarape Vine Inc., El Zarape Redondo Beach, El Zarape Cocina On Melrose Inc., and El Zarape Beverly Kitchen Inc. On October 4, 2023, Joaquin Mendez, “Representative of Defendant El Zarape Cocina on Melrose Corp.” “in pro per” filed a “verified answer.”
Counsel substituted in on behalf of El Zarape Cocina on Melrose Inc. on October 11, 2023. On December 19, 2023, the court denied the motion to strike the answer of El Zarape Cocina on Melrose Inc.
RULING: Granted.
Plaintiff Angelica Montano moves for terminating sanctions against Defendant, El Zarape Cocina On Melrose Inc., due to its failure to comply with the order compelling responses to Form Interrogatories (set one), Special Interrogatories (set one), and Request for Production of Documents (set one) granted on January 22 and 29, 2025.
On April 18, 2025, the court granted the ex parte motion to advance the hearing date. Plaintiff served notice of the new hearing date on April 24, 2025.
The court electronic filing system shows no opposition or reply on file at the time of the tentative ruling publication cutoff.
“Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326; Department of Forestry & Fire Protection v. Howell¿(2017) 18 Cal.App.5th 154, 191 [“Terminating sanctions are to be used sparingly because of the drastic effect of their application.”].) “The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez¿(2014) 223 Cal.App.4th 377, 390.)
A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)
Plaintiff maintains the violation of the orders constitutes intentional conduct. Plaintiff also cites to the failure to pay monetary sanctions as a basis of relief. The court cannot impose terminating sanctions as a result of non-payment of monetary sanctions.
Given the four unopposed motions to compel responses, the continued non-compliance with production provided with the prior orders, and lack of opposition to any motion, including the subject motion, the court finds the lack of action constitutes an intentional and willful disregard of the court orders. The court therefore grants the motion for terminating sanctions instead of imposing a lesser evidentiary or issue sanction thereby requiring further prosecution of the case. The court therefore strikes the October 4, 2023, answer of Defendant, El Zarape Cocina On Melrose Inc., and allows Plaintiff to submit a request for entry of default with the clerk.
Trial currently set for May 11, 2026.
Plaintiff to give notice.