Judge: Anne Hwang, Case: 21STCV36814, Date: 2023-10-03 Tentative Ruling

Case Number: 21STCV36814    Hearing Date: February 2, 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

On October 5, 2021, Plaintiff Jan Alunowski Campbell (Plaintiff) filed a complaint against Defendants Martin Basch (Defendant) and Does 1 to 50 for negligence related to a motor vehicle/pedestrian accident.

On February 1, 2023, the Court granted Plaintiff’s-then counsel’s motion to be relieved. (Min. Order, 2/12/23.)

            On October 3, 2023, the Court granted Defendant’s motion to compel Plaintiff’s deposition. Plaintiff did not appear at the hearing. The Court ordered Plaintiff to appear for a deposition within 15 days. Defendant served and filed notice of the ruling by mail on October 5, 2023. Nevertheless, Plaintiff did not appear for his noticed deposition on October 18, 2023. He also did not respond to Defendant’s counsel’s calls and voicemails.

 Defendant also argues that Plaintiff has not responded to Requests for Admissions, Set One, which were served on August 24, 2023. (Blunt Decl. ¶ 8, 11.)

            Defendant now moves for terminating sanctions, arguing that Plaintiff has not complied with the order. No opposition has been filed.

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 Destini C. Blunt, Plaintiff initially failed to appear at his noticed deposition on March 14, 2023. (Blunt Decl. ¶ 7.) The deposition notice was served February 7, 2023. The non-appearance prompted a motion to compel Plaintiff’s deposition, which was granted on October 3, 2023. (Id. ¶ 9.) Plaintiff did not appear for his second noticed deposition on October 18, 2023, in violation of the Court’s order. On the day before the deposition, Defendant called Plaintiff’s phone number, as indicated on his prior counsel’s motion to be relieved, and left a voicemail. Plaintiff did not return the call. After Plaintiff did not appear at the deposition, Defendant left another voicemail, which was not returned. (Id. ¶ 10.) Therefore, it appears Plaintiff has not responded to Defendant’s counsel’s attempts to meet and confer. Additionally, Defendant argues that Plaintiff has not served responses to Requests for Admissions, Set One, which were served August 24, 2023.

Based on the totality of the circumstances, Defendant has shown that Plaintiff has failed to respond to discovery requests since at least February 7, 2023, and has failed to comply with a Court order. Accordingly, the Court grants the motion for terminating sanctions.

CONCLUSION AND ORDER

Defendant’s motion for terminating sanctions is GRANTED. The Court orders Plaintiff’s Complaint against Defendant 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.