Judge: Anne Hwang, Case: 20STCV49497, Date: 2023-09-29 Tentative Ruling

Case Number: 20STCV49497    Hearing Date: September 29, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On December 29, 2020, Plaintiff Martin Mercado (Plaintiff) filed a complaint against Defendants David Carranza, Jasmin Carranza, Jose Ramon Mandujano, and Does 1 to 10 for negligence and strict liability based on an alleged dog attack. 

            On May 18, 2023, the Court granted Defendants’ motions to compel Plaintiff’s deposition, and responses to Special Interrogatories and Requests for Production. (Min. Order, May 18, 2023.) The Court ordered Plaintiff to appear for a deposition and serve verified responses to the SROG and RPD, without objections, within 30 days of notice of the order. Plaintiff did not appear at the hearing. A proof of service of the notice of ruling was filed on May 19, 2023.

            Defendants now move for terminating sanctions, arguing that Plaintiff has not complied with the order.

LEGAL STANDARD

If a party engages in the misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., § 2023.030.) Code of Civil Procedure section 2023.010 provides, in relevant part, that “[m]isuses of the discovery process include, but are not limited to, the following: … (d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery.”  

“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, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)   

“Generally, ‘[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.’” (Los Defensores, supra, 223 Cal. App. 4th at p. 390 [citation omitted].)    

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendant’s Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)  

DISCUSSION

According to the Declaration of Andrew McEwan, Plaintiff’s counsel advised on April 29, 2022 that he had been unable to locate plaintiff. (McEwan Decl. ¶ 5.) However, counsel has not filed any motion to be relieved, and has since appeared in court on behalf of plaintiff. (See, e.g., Minute Orders dated March 9, 2023 and August 2, 2023.) On May 18, 2023, the Court granted Defendants’ motions to compel deposition and discovery responses, and ordered Plaintiff to appear and respond to discovery within 30 days. On May 19, 2023, Defendants served notice of the order on Plaintiff’s counsel. (McEwan Decl. ¶ 7.) Defendants assert that as of the filing of this motion, on July 25, 2023, Plaintiff has failed to serve verified responses to the written discovery requests. (Id. ¶ 8.)

Based on the totality of the circumstances, Defendants have shown that Plaintiff has failed to respond to discovery requests since at least February 16, 2022, and has failed to comply with a Court order. Accordingly, the Court grants the motion for terminating sanctions.

CONCLUSION AND ORDER

Defendants’ motion for terminating sanctions is GRANTED. The Court orders Plaintiff’s Complaint against Defendants to be dismissed with prejudice.

The Final Status Conference and Jury Trial dates are advanced and vacated.

            Defendant shall give notice of the Court’s order and file a proof of service of such.