Judge: Anne Hwang, Case: 21STCV43331, Date: 2023-08-25 Tentative Ruling

Case Number: 21STCV43331    Hearing Date: December 5, 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

Defendant Los Angeles County Metropolitan Transportation Authority (Defendant) moves for terminating sanctions against Plaintiff James Clay, Jr. (Plaintiff) for failure to comply with discovery and the Court’s discovery order.

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.) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) If a party or party-affiliated deponent fails to obey an order compelling attendance, testimony, and production, a court may impose issue, evidence, or terminating sanctions against the party who failed to appear. (Code Civ. Proc. § 2025.450(h).) A court may impose monetary sanctions in lieu of or in addition to non-monetary sanctions in favor of any party who attended the deposition in expectation that the deponents testimony would be taken pursuant to that order. (Id.)  

“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

On January 9, 2023, Plaintiff failed to appear to a noticed deposition. On August 25, 2023, the Court ordered Plaintiff to appear for deposition within 30 days’ notice of the order. Defendant noticed the second deposition and attached the Court order. Plaintiff failed to appear at the second deposition. (Kane Decl., Exh. F.) Defendant also has not received any discovery responses which were propounded on July 13, 2022, and due August 17, 2022. Defendant asserts that Plaintiff’s counsel has been unable to contact Plaintiff for over a year. (Motion, 6.)

Based on the above, it appears Plaintiff has failed to engage in discovery with Defendant and has failed to obey the Court’s August 25, 2023 order. There is also no indication that Plaintiff has attempted to contact his counsel in litigating this case. Therefore, the facts here show a long history of failing to participate in this case. For all of these reasons, the motion is granted.

CONCLUSION

Therefore, Defendant’s motion for terminating sanctions is GRANTED.

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