Judge: Anne Hwang, Case: 22STCV16711, Date: 2023-08-16 Tentative Ruling

Case Number: 22STCV16711    Hearing Date: October 24, 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 Executive Investments, Inc. (Defendant) moves for terminating sanctions, or in the alternative, monetary sanctions, against Plaintiff Robert Myrick (Plaintiff) pursuant to Code of Civil Procedure section 2025.450(h).

LEGAL STANDARD

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., section 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 August 16, 2023, the Court granted Defendant’s motion to compel Plaintiff’s deposition. Plaintiff had previously not appeared at a January 24, 2023 deposition. Plaintiff’s deposition was ordered to occur on September 13, 2023 or another date not to exceed 60 days that the parties agreed to in writing. (Min. Order, August 16, 2023.)

Defendant provided Plaintiff with notice of the Court’s order on August 17, 2023 by mail. Counsel for Defendant declares that Plaintiff did not appear for deposition on September 13 and counsel has received no communications from Plaintiff to schedule the deposition. (Capra-Cunningham Dec. ¶ 12.) Trial is presently set for November 17, 2023. No opposition to this motion has been filed.

According to the Court’s prior order, the deposition must occur by October 16, 2023. The motion was filed on September 25, 2023. At the hearing on the motion, Defendant shall confirm that Plaintiff has still not appeared for deposition. If Plaintiff has neither contacted defense counsel to schedule a deposition nor appeared, then the Court will grant the motion for terminating sanctions.

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