Judge: Anne Hwang, Case: 22STCV13031, Date: 2023-08-04 Tentative Ruling

Case Number: 22STCV13031    Hearing Date: September 18, 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

This is a personal injury action based on an auto accident that occurred on April 23, 2020. Plaintiff Laura Diaz (Plaintiff) filed this action on April 19, 2022, alleging causes of action against Defendants Emil Tedesco and Patricia Tedesco (“Defendants”) for negligence and negligence per se.

On July 7, 2023, Defendants filed motions to dismiss the complaint of Plaintiff for failure to comply with the Court’s discovery orders. On August 4, 2023 and August 15, 2023, the Court held hearings on Patricia and Emil Tedesco’s motions, respectively, and concluded that though there was no dispute that Plaintiff failed to serve responses, dismissal of the entire action with prejudice would be an excessive sanction at that time.  The Court then ordered Plaintiff to serve responses to the FROGs and RPDs, without objections within 20 days of notice of the Court’s order. The Court then stated: “FAILURE TO COMPLY MAY RESULT IN THE COURT DISMISSING THE ENTIRE ACTION WITH PREJUDICE.” (Minute Orders dated August 4, 2023 and August 15, 2023.) The Court ordered any response by Plaintiff to be filed by September 11, 2023. As of today, Plaintiff has not filed a response. Finally, the Court ordered Defendants to give notice to Plaintiff and file proofs of service. (Id.)

LEGAL STANDARD

The court is authorized, after notice and opportunity for hearing, to impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, and contempt. (Code Civ. Proc., §¿2023.030, subd. (a)-(e).) A terminating sanction may be imposed by an order striking out a pleading of any party engaging in the misuse of the discovery process. (Id., § 2023.030, subd. (d)(3).)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992; see J.W. v. Watchtower Bible and Tract Society of New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.) If a lesser sanction fails to curb misuse, a greater sanction is warranted. (Doppes, 174 Cal.App.4th at 992.) Discovery sanctions should be appropriate to the dereliction, and should not exceed what is required to protect the interests of the party entitled to but denied discovery. (Id.) “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.” (Id. [quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279– 280]; Creed-21 v. City of Wildomar¿(2017) 18 Cal.App.5th 690, 702 [quoting same].)

Code of Civil Procedure section 2023.010, subdivisions (d) and (f) provide that a misuse of the discovery process includes, but is not limited to, “[f]ailing to respond or to submit to an authorized method of discovery” and “[m]aking an evasive response to discovery.” (Code Civ. Proc., § 2023.010(d), (f).)

DISCUSSION

According to the Declaration of Lyndon Hong, as of September 5, 2023, Defendants had not received any responses to the FROGs and RPDs. (Hong Decl. ¶ 5.) However, on August 4, 2023 and August 15, 2023, the Court ordered Defendants to give notice to Plaintiff of the Court’s orders and file proof of service of such. Only the proof of service of the ruling on Emil Tedesco’s motion is docketed. Additionally, Counsel’s declaration does not specify that Patricia Tedesco served the Court’s order on Plaintiff.

Accordingly, the Court grants Emil Tedesco’s motion for terminating sanctions against Plaintiff. Unless Patricia Tedesco files a proof of service of the August 4, 2023 order, the Court denies her motion with prejudice.

CONCLUSION AND ORDER

The Court dismisses the complaint against Emil Tedesco with prejudice.

The Court denies Patricia Tedesco’s motion to dismiss without prejudice.

Defendants shall give notice of the Court’s orders and file proofs of service of such.