Judge: Anne Hwang, Case: 21STCV03475, Date: 2023-11-08 Tentative Ruling

Case Number: 21STCV03475    Hearing Date: March 12, 2024    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

Defendants Steuber Corporation dba Alta Service and Patrick Fink (“Defendants”) move for terminating sanctions against Plaintiff Christina Stever (“Plaintiff”) for failure to comply with the Court’s November 8, 2023 discovery order. No opposition has been filed.

LEGAL STANDARD

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose…sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: “(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party.” (Code Civ. Proc. § 2023.030(d).)  Failing to respond or to submit to an authorized method of discovery, or disobeying a court order to provide discovery, constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)

“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

From February 21, 2023 to July 14, 2023, Defendants attempted to notice Plaintiff’s deposition. (Chapman Decl. ¶ 3–5.) Each time, Plaintiff unilaterally cancelled the deposition but failed to provide alternative dates. Defendants then moved to compel Plaintiff’s deposition.

On November 8, 2023, the Court granted Defendants’ unopposed motion to compel Plaintiff’s deposition. Counsel for Plaintiff submitted on the Court’s tentative ruling. The Court ordered Plaintiff to appear for deposition within 30 days and ordered Plaintiff to pay $229.65 in monetary sanctions to Defendants’ counsel. (Min. Order, 11/8/23.) On November 13, 2023, Defendants served notice of the order on Plaintiff’s counsel.

On November 30, 2023, Defendants noticed Plaintiff’s deposition for December 19, 2023. (Chapman Decl. ¶ 12, Exh. B.) Plaintiff has not responded to the notice. Defendants argue that therefore, Plaintiff is unresponsive and has made it impossible to move forward with discovery.

The Court finds that Plaintiff has not complied with the November 8, 2023 order. Plaintiff also has been unresponsive or uncooperative in attempts to schedule her deposition since February 2023. Plaintiff does not oppose this motion and therefore fails to set forth reasons for the discovery abuse. Accordingly, the Court grants the motion.

CONCLUSION

Therefore, Defendants’ motion for terminating sanctions is GRANTED. The complaint as to Defendants Steuber Corporation dba Alta Service and Patrick Fink is dismissed without prejudice.

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.