Judge: Anne Richardson, Case: 21STCV26780, Date: 2023-11-03 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV26780    Hearing Date: February 13, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Jose Garcia sues Defendants Bustos Auto Body (his former employer), Fabricio Busto (Bustos Auto Body’s owner and operator, and, according to prior papers filed by Defendants, erroneously sued as Fabrico Raul Bustos), and Does 1 through 20 pursuant a July 21, 2021 Complaint alleging claims of (1) Misclassification of Employee Status, (2) Failure to Pay All Wages Owed, (3) Failure to Pay All Minimum Wages Owed, (4) Failure to Provie All Required Rest Periods, (5) Failure to Provide All Reasonable Meal Periods, (6) Failure to Provide Accurate Wage Statements, (7) Failure to Pay Wages in a Timely Manner, (8) Unfair Competition, (9) Failure to Pay All Wages Due Upon Separation from Employment, (10) Waiting Time Penalties, (11) Failure to Produce Employment File, and (12) Failure to Produce Wage Records.

Motion Before the Court

On June 28, 2023, Plaintiff’s counsel served a notice of deposition on Defendant Busto’s counsel, with the deposition to take place on July 27, 2023. The deposition notice was served on Eliel Chemerinski, whom the Court relieved of representation on March 30, 2023, and on Defendant Busto at his 1345 San Fernando Road, San Fernando, CA 91340 business address.

Between July 20 and 26, 2023, Plaintiff’s counsel emailed Defendant Busto at the email provided by Eliel Chemerinsky. Defendant Busto did not respond to those communications.

On July 27, 2023, Defendant Busto called Plaintiff’s counsel’s office and the parties discussed the deposition, some material issues in this action, the credibility of Defendant Busto’s representations, and Defendant Busto’s desire for service at a different email address and a different physical address but failure to provide more than a telephone number. Plaintiff’s counsel thereafter texted Defendant Busto, noting a failure to produce discovery.

On October 4, 2023, Plaintiff’s counsel filed a motion to compel the deposition of Defendant Busto. Defendant Busto failed to oppose the motion, which the Court granted on November 3, 2023 at a hearing at which Defendants made no appearance. Plaintiff Busto was ordered to submit himself for deposition by November 15, 2023 and to pay $2,061.65 in sanctions within 30 days of the ruling.

On November 8, 2023, the Court held a status conference at which Defendant Busto failed to appear, leading the Court to order sanctions against Busto pursuant to Code of Civil Procedure section 177.5.

On December 21, 2023, Plaintiff filed a motion to strike Defendant Busto’s Answer or, in the alternative, that the Court enter additional sanctions, monetary or otherwise, against Defendant Busto for acting in contempt of Court orders in willfully refusing to attend his properly noticed deposition and failure to pay Court ordered monetary sanctions to Plaintiff. The motion also seeks reasonable costs and attorneys’ fees in connection with Defendant Busto’s failure to attend and participate in the deposition.

The motion was mailed to Defendants Busto and Bustos Auto Body on December 21, 2023 and emailed to these Defendants to the same email address on December 22, 2023. (See Notice of Errata filed January 4, 2024.)

On January 3, 2024, the Court held an order to show cause (OSC) hearing at which Defendant Busto failed to appear. Plaintiff’s counsel represented that Defendant Busto did not intend to participate in this case and that Plaintiff had filed a motion to enter default as to Defendant Busto, i.e., the December 21st motion. The Court also granted additional sanctions against Defendant Busto pursuant to Code of Civil Procedure section 177.5.

Defendant Busto failed to oppose Plaintiff’s motion, which is now before the Court.

Motion for Terminating Sanctions

Legal Standard

Terminating sanctions are drastic sanctions that should be imposed sparingly and only when it is clear that the party to be sanctioned has left no viable alternatives. (See Dept. of Forestry & Fire. Prot. v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved on other grounds in Presbyterian Camp & Conf. Ctrs, Inc. v. Superior Court (2021) 12 Cal.5th 493; Lopez v. Watchtower Bible & Tract Soc’y (2016) 246 Cal.App.4th 566, 604.)

The court should consider the totality of the circumstances before ordering terminating sanctions, including (1) whether the conduct of the party was willful, (2) the detriment to the party propounding discovery, and (3) the number of formal and informal attempt to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) The Court is not required to find that a party acted in bad faith before imposing terminating sanctions. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 703.)

If terminating sanctions are warranted, the Court may make:

(1) An order striking all or parts of the pleadings (Code Civ. Proc., § 2023.030, subd. (d)(1); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1519 [trial court struck defendant’s answer]);

(2) An order staying proceedings until a party obeys a discovery order (Code Civ. Proc., § 2023.030, subd. (d)(2); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992);

(3) An order dismissing all or part of a party’s action (Code Civ. Proc., § 2023.030, subd. (d)(3); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992; see, e.g., Crawford v. JPMorgan Chase Bank (2015) 242 Cal.App.4th 1265, 1271 [dismissal proper when party threatened to use pepper spray and taser on opposing counsel at deposition and was openly contemptuous of trial court]); and

(4) An order rendering a default judgment against a party (Code Civ. Proc., § 2023.030, subd. (d)(4); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992; see, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183-1184 [defendant’s pervasive and consistent misuse of discovery process supported court’s dismissal of answer and entry of default judgment]; but see Nickell v. Matlock (2012) 206 Cal.App.4th 934, 943-944 [Code Civ. Proc., § 764.010 prohibits court from rendering judgment by default as discovery sanction in quiet title actions]).

Order Granting Terminating and Monetary Sanctions: GRANTED.

Here, the Court finds that sufficient grounds exist to strike Defendant Busto’s Answer.

As argued by Plaintiff, Defendant Busto’s conduct in failing to 1) respond to communications, 2) attend his deposition and 3) pay sanctions appears willful: “Here, there is no argument of either because Defendant did not comply with the Court order to attend his deposition, or at least properly meet and confer to establish an alternative date. Defendant also failed to pay the Court ordered monetary sanctions to Plaintiff, and presumably also to the Court. Failure to comply arose out of Defendant’s deliberate choice to not comply, which he outrightly stated when speaking with Plaintiff’s counsel. (Mot., p. 8; see Mot., Danelon Decl., ¶¶ 13-14 [“During my call on November 9, 2023, I advised Defendant that he would need to attend his deposition on November 15, 2023 or at least provide me an alternative date for his deposition to be taken. Defendant became defiant and rude, including cursing, and told me that he would not attend his deposition on November 15, 2023 or any other date. [¶] I then advised Defendant that the Court had also ordered him to pay monetary sanctions to Plaintiff on November 3, 2023 …. … Defendant again became crass and again explicitly stated that he would not pay monetary sanction to Plaintiff or the Court at any point. As of this date, the monetary sanctions have not been paid to Plaintiff. [¶] …. Defendant said … he did not care [whether Plaintiff filed a motion to strike his answer for failure to comply with this Court’s order] and that he [Busto] would not comply with any court order.”]; see also Mot., Danelon Decl., ¶ 8, Ex. E [phone log showing call from Defendant Busto].)

There is a clear detriment here to the propounding party, Plaintiff Jose Garcia, who is unable to conduct discovery and depose Defendant Busto prior to trial in this action, particularly where a deposition was first noticed in June 2023.

Last, Plaintiff shows sufficient follow-ups with and outright refusals to comply from Defendant Busto. (Mot., Danelon Decl., ¶¶ 8-16.)

The Court thus GRANTS Plaintiff’s motion, STRIKES Defendant Busto’s Answer, and ENTERS DEFAULT against Defendant Busto, a conclusion reinforced by the outright refusal of Defendant Busto to comply with his Court’s orders and the lack of viable alternatives to ensure Defendant Busto’s compliance with the Discovery Act and this Court’s orders. (See, e.g., 11/8/23 and 1/3/24 Minutes [imposing monetary sanctions on Defendant Busto for failure to appear]; Dept. of Forestry & Fire. Prot. v. Howell, supra, 18 Cal.App.5th at p. 191.)

The Court also GRANTS the request for sanctions in the amount of $2,923.45, which is comprised of reasonable costs of $61.65 and $861.60, a reasonable fee rate of $500 per hour, and four hours expended by counsel or to be expended by counsel in connection with this motion, including making an appearance at this hearing. (Mot., p. 11; Mot., Danelon Decl., ¶ 22.)

Conclusion

Plaintiff Jose Garcia’s Motion to Strike Answer of Defendant Fabricio Busto; or in the Alternative, Enter Additional Sanctions for Contempt and Failure to Comply with Court Order is GRANTED.

Plaintiff may proceed by way of entering default and default judgment.

Defendant Fabricio Raul Busto’s (sued as Fabrico Raul Bustos) July 28, 2022 Answer to Complaint is STRICKEN. (Code Civ. Proc., § 2023.030, subd. (d)(1); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992; Van Sickle v. Gilbert, supra, 196 Cal.App.4th at p. 1519.)

The Court ENTERS DEFAULT against Defendant Fabricio Raul Busto (sued as Fabrico Raul Bustos). (Code Civ. Proc., § 2023.030, subd. (d)(4); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992; Electronic Funds Solutions, LLC v. Murphy, supra, 134 Cal.App.4th at pp. 1183-1184.)

Plaintiff Jose Garcia’s request for reasonable costs and attorneys’ fees is also GRANTED in the amount of $2,923.45.

Defendant Fabricio Raul Busto (sued as Fabrico Raul Bustos) is ORDERED to remit payment of these sanctions to Plaintiff Jose Garcia within 21 days of notice of this order.

Defendant Fabricio Raul Busto (sued as Fabrico Raul Bustos) is further ORDERED to remit the monetary sanctions ordered in this Court’s November 3, 2023 order to Plaintiff Jose Garcia within 21 days of this ruling. (Code Civ. Proc., § 128, subd. (a)(4) [courts shall have the power to compel obedience to its orders].)