Steve Schwab v. Christopher Bowen, et al
Steve Schwab v. Christopher Bowen, et al
Case Number
20CV02113
Case Type
Hearing Date / Time
Mon, 01/08/2024 - 10:00
Nature of Proceedings
Motion of Plaintiff Steve Schwab for Terminating Sanctions
Tentative Ruling
Steve Schwab v. Christopher Bowen, et al.
Case No. 20CV02113
Hearing Date: January 8, 2024
HEARING: Motion of Plaintiff Steve Schwab for Terminating Sanctions
ATTORNEYS: For Plaintiff Steve Schwab: Wiley G. Uretz and Randall Fox
For Defendant Christopher Bowen: Self-represented
For Defendant GF Services, LLC: Default taken
TENTATIVE RULING:
The motion of plaintiff Steve Schwab for terminating sanctions is granted. Defendant Christopher Bowen’s answer is stricken, and default judgment shall be entered against defendant Christopher Bowen and in favor of plaintiff Steve Schwab. Counsel for plaintiff shall prepare the judgment.
Background:
On March 16, 2023, plaintiff Steve Schwab filed his complaint for breach of contract against defendants Christopher Bowen and GF Services, LLC.
As alleged in the complaint:
“On or about September 30,2022, Defendants, Bowen and GF Services (collectively ‘Borrower’), for valuable consideration, made, executed, and delivered to Plaintiff a Promissory Note of that date in the principal amount of $721,505.16, with interest on unpaid principal at a rate of ten percent (10%) per annum. Under the terms of the Promissory Note Borrower was to make monthly interest payments of, at least, $2,000, commencing January 5,2023, until the Promissory Note is fully satisfied. All remaining principal and interest was due and payable on or before January 5,2028.” (Complaint, ¶ 7.) “To date, Borrower failed to make any monthly payments required by the Promissory Note.” (Complaint, ¶ 8.)
On February 23, 2023, plaintiff elected to declare all outstanding indebtedness under the note, pursuant to terms included in the note, due and payable and notified defendants. (Complaint, ¶¶ 9, 10.)
On May 30, 2023, Bowen answered the complaint setting forth a general denial and 26 affirmative defenses.
GF Services did not answer the complaint and on June 7, 2023, its default was taken by plaintiff.
On June 6, 2023, plaintiff served Bowen requests for admission, requests for production of documents, and form interrogatories. (Uretz Dec., ¶ 5.)
Due to Bowen’s failure to respond, on August 14, 2023, plaintiff filed motions to compel responses to the discovery, including a motion to deem the requests for admission admitted. (Uretz Dec., ¶ 7.) On September 29, 2023, the court granted the motions and issued monetary sanctions. (Uretz Dec., ¶ 8 & Exh.1.) Bowen did not attend the hearing. (Ibid.)
Bowen did not appear at the case management conference on October 2, 2023, when trial was scheduled for January 29, 2024. (Uretz Dec., ¶ 9.)
As of November 19, 2023, plaintiff has not received any responses for the discovery requests, nor has he received the monetary sanctions. (Uretz Dec., ¶ 10.)
Plaintiff filed and served the current motion for terminating sanctions on November 22, 2023, via mail.
No opposition or other response has been filed to the motion.
Analysis:
Plaintiff moves for terminating sanctions by striking Bowen’s answer and entering a default judgment against him pursuant to Code of Civil Procedure section 2023.030, subdivision (d).
If a party “fails to obey an order compelling further responses to interrogatories, 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., § 2030.300, subd. (e).)
If a party “fails to obey [an] order compelling a response [to a demand for production of documents], 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., § 2031.300, subd. (c).)
If a party “fails to obey an order compelling further responses to requests for admission, the court may order that the matters involved in the requests be deemed admitted.” (Code Civ. Proc., § 2033.290, subd. (e).)
“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.’ [Citation.]” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.)
“A decision to order terminating sanctions should not be made 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.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280.)
In this case, plaintiff has been unsuccessfully attempting to obtain discovery from Bowen for seven months and trial is scheduled to commence this month. Bowen has willfully refused to comply with the orders compelling responses to discovery and has failed to make any attempts to explain his failure to comply. This, in effect, has deprived plaintiff of being able to adequately prepare for trial.
In Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, the court held that terminating sanctions were warranted when it “became obvious” that a party had no intention of answering discovery or complying with the judge’s orders. (Id., at p.p. 799-800.) Given that Bowen has provided no information in response to previous discovery requests, produced no documents, and has failed to attend scheduled hearings, it is obvious that he has no intention of answering discovery or complying with the court’s orders. As such, terminating sanctions are appropriate. No lesser alternatives would induce compliance.
The court may impose a terminating sanction by “[a]n order rendering a judgment by default against that party.” (Code Civ. Proc., § 2023.030, subd. (d)(4).)
Bowen’s answer will be stricken, and default entered in favor of plaintiff.