Jose Jasso vs David Allen Bruhl

Case Number

22CV01848

Case Type

Hearing Date / Time

Fri, 02/23/2024 - 10:00

Nature of Proceedings

Motion: Order for Terminating Sanctions

Tentative Ruling

The Court will grant the motion, and will order that plaintiff’s complaint against defendant be dismissed.

Background: This is a personal injury action, arising from an automobile accident which is alleged to have occurred on May 15, 2020, at the intersection of State Street an SR-154. Plaintiff’s then-attorney moved to be relieved as counsel of record on July 13, 2022. Thereafter, on July 21, 2022, defendant served plaintiff with Form Interrogatories (Set 1), Special Interrogatories (Set 1), and a Request for Production of documents (Set 1). Although an extension of time to respond by September 22, 2022, was granted, no responses to the discovery were ever received. At a hearing conducted on September 30, 2022, plaintiff’s attorney was permitted to withdraw from her representation of plaintiff, and was directed to submit a new proposed order designating the effective date for counsel to be relieved, and to serve the order on plaintiff. The formal order granting the attorneys’ motion to be relieved as counsel was executed by the Court on October 4, 2022, and was filed on October 5, 2022. That order provided, in Section 5, that the attorney would be relieved as counsel of record “effective upon the filing of the proof of service of this signed order upon the client.” Counsel failed to file the proof of service for almost 10 months, effectively remaining as counsel of record for plaintiff during that period.

During that period, defendant filed motions to compel responses to the discovery, without objections, serving the motions on plaintiff individually, rather than on his attorney of record. Plaintiff did not oppose the motions, and the court—failing to then detect the service and representation problem—granted the motions, and ordered plaintiff to serve defendant with verified responses to the discovery and to pay sanctions. When the court-ordered date for response came and went, defendant filed his previous motion for terminating sanctions, again serving the motion on plaintiff himself rather than on his attorney of record. Plaintiff did not oppose the motion for terminating sanctions.

In following up to confirm that plaintiff’s failure to respond to the discovery motions and to the motion for terminating sanctions did not result from a service defect, this Court discovered the issue related to plaintiff’s former counsel’s failure to file the proof of service of the court order relieving her of his representation on the plaintiff. Under the express terms of the court order, until such proof of service was filed, counsel remained as attorney of record for plaintiff. As a result, service of the discovery motions and the motion for terminating sanctions was legally deficient, and precluded the Court from entertaining the issue of terminating sanctions, regardless of plaintiff’s failure to oppose the motion.

In a tentative ruling posted prior to the June 30, 2023 hearing on the motion for terminating sanctions, the Court vacated the order compelling plaintiff to respond to the discovery, and ordered defense counsel to provide plaintiff’s counsel with a copy of the Court’s tentative ruling and to advise her that she remained—and would be expected to act—as plaintiff’s attorney of record until such time as she filed proof of her service upon plaintiff Jasso of the Court’s signed order permitting her to withdraw as counsel of record.

On June 28, 2023, two days prior to the hearing, plaintiff’s counsel filed the proof of service.

Because there no longer existed any order compelling plaintiff to respond to the discovery, defendant on August 10, 2023, then re-filed the motions to compel responses to the discovery without objection. Plaintiff did not oppose the motions. The motions were heard and granted by the court on October 27, 2023, and ordered plaintiff to serve verified responses, without objection, no later than November 17, 2023, and to pay sanctions totaling $1,384.95. Defendant served Notice of the court’s ruling upon defendant on October 27, 2023.

When no responses were provided by the court-ordered date, defendant filed its second motion for terminating sanctions, seeking dismissal of the action based upon plaintiff’s abuse of the discovery process in failing to obey court orders compelling his discovery responses. The motion asserts that, under the circumstances presented in this case, it “has become abundantly clear the Plaintiff has abandoned his case.” Alternatively, defendant seeks an order staying further proceedings until the order compelling discovery is obeyed.

Plaintiff has not opposed the motion.

ANALYSIS:  The Court will grant the motion, and will order that plaintiff’s action against defendant be dismissed.

The motions to compel related to form and special interrogatories, and a demand for production of documents. Pursuant to Code of Civil Procedure sections 2023.010(g), 2030.300(e), and 2031.310(i), if a party fails to obey an order compelling further responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and may also impose a monetary sanction either in lieu of or in addition to that sanction. The court has broad discretion in selecting the appropriate penalty. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) However, enhanced (non-monetary) sanctions are also largely available only when the failure to comply with the court order was willful. (See, e.g., Biles v. Exxon Mobil Corporation (2004) 124 Cal.App.4th 1315, 1327.)

Parties to litigation are required to participate in and respond to proper discovery requests propounded by the opposing party. Here, defendant, in an attempt to prepare to meet plaintiff’s allegations and to prepare for trial, served written discovery upon plaintiff. Plaintiff failed to respond to the discovery, failed to oppose the motions to compel responses to discovery, failed to comply with the court order compelling responses to discovery and to pay sanctions, and failed to oppose the motion for terminating sanctions. During the pendency of the action prior to plaintiff’s counsel’s withdrawal, plaintiff failed to respond to numerous attempts by his attorney to contact and/or communicate with him. Further, during the extended period of time this process took to play out (the discovery was originally served in mid-2022), there is no indication in the Court file of any inquiry made by plaintiff regarding the status of his case, or any attempt by plaintiff to take any action with respect to his case, whether to further its progress or otherwise. 

Under the circumstances present in this case, it has become clear to this Court that plaintiff has long since abandoned his claims against defendant. He has failed to respond to discovery, failed to respond to attempts to communicate with him, and failed to respond to court orders. The Court will therefore grant the motion for terminating sanctions, and will order that plaintiff’s complaint against defendant be dismissed.