The matter involved a dispute between a Los Angeles based event producer and a promoter where the promoter sued the producer for $770,000 in alleged damages after the producer allegedly refused to allow ticketholders into an event after the promoter failed to provide a list of ticket sales to verify the validity of the tickets. As a result, the promoter alleged that its reputation in the community was irreparably harmed.
When the promoter failed to verify responses to discovery or to appear for the second half of her deposition, Mr. Strongin obtained court orders compelling her to verify and appear, along with monetary sanctions. When the promoter failed to comply, the Court granted Strongin’s request for terminating sanctions which resulted in the dismissal of the complaint with prejudice and the answer to the cross-complaint was stricken–thus leaving the defendant/cross-complainant with the sole obligation of submitting evidence of damages at a prove-up hearing.
It issuing its ruling, the Court reasoned as follows: In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: “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.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)
At this time, the Court deems terminating sanctions to be appropriate. At the time this motion is heard, trial will be about two weeks away. Plaintiff/Cross-Defendant has not provided complete verified responses to written discovery or complete production of documents, to complete her deposition, despite court orders that she do both. (See Declaration of Eric B. Strongin.) Plaintiff/Cross-Defendant’s failure to adequately respond to discovery has prejudiced Defendant/Cross-Complainant’s right to proceed with trial.
Plaintiff/Cross-Defendant claims that her attorney has abandoned her. However, while this may be grounds for Plaintiff/Cross-Defendant to seek legal recourse against her attorney, she must bear the consequences of permitting the counsel of her choice to represent her to this point of the litigation: A dismissal for failure to obey a court’s discovery orders has the effect of a judgment on the merits against a plaintiff. (Kahn v. Kahn (1977) 68 Cal.App.3d 372, 383 [137 Cal.Rptr. 332].) As the court stated in Kahn, “[The] persistent refusal of a party to make discovery results in a presumption, as a matter of law, that the asserted causes of action are without merit.” (Ibid.)
With respect to plaintiff’s argument that the dismissal of her complaint against defendant was based on the willful failure of plaintiff’s attorney, not plaintiff herself, to comply with the court-ordered discovery, it should be borne in mind that plaintiff “voluntarily chose this attorney as her representative in the action, and she cannot now avoid the consequences of the acts or omissions of this freely selected agent.” (Link v. Wabash Railroad Co. (1962) 370 U.S. 626, 633-634 [8 L.Ed.2d 734, 740, 82 S.Ct. 1386].) Any other notion would be totally inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent (Id. at p. 634 [8 L.Ed.2d at p. 740]), and would allow litigants or their counsel to turn a deaf ear to the processes of the court with impunity, thus precluding effective judicial administration at the trial court level (Kahn v. Kahn, supra, 68 Cal.App.3d at p. 383; Bernstein v. Allstate Ins. Co. (1981) 119 Cal.App.3d 449, 451.)