Judge: Armen Tamzarian, Case: 21STCV00914, Date: 2023-03-30 Tentative Ruling

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Case Number: 21STCV00914    Hearing Date: March 30, 2023    Dept: 52

Defendants NGL Logistics, LLC and Jae Joon Lee’s Motion for Terminating Sanctions

Defendants NGL Logistics, LLC and Jae Joon Lee move for terminating and monetary sanctions against plaintiff Ernesto Jauregui.

Evidentiary Objections

            Defendants make 12 objections to plaintiff’s evidence in support of the opposition.  All 12 objections are overruled.

Sanctions

Discovery sanctions should be imposed incrementally, “starting with monetary sanctions and ending with the ultimate sanction of termination.”  (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)  “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”  (Ibid.) 

Terminating sanctions are  “ ‘ordinarily a drastic measure which should be employed with caution.’ ”  (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.)  Appropriate sanctions are those “suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but [not] which are designed not to accomplish the objects of discovery but to impose punishment.”  (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488.)

As the court found at the initial hearing on this motion, plaintiff violated the court’s discovery orders.  On August 23, 2022, the court ordered plaintiff to serve verified responses to special interrogatories, form interrogatories – general, form interrogatories – employment, and requests for production.  The court also ordered plaintiff to pay a total of $2,860 in monetary sanctions.  Plaintiff has not served any of the required discovery responses.  (Danna Decl., ¶ 17.)  He also has not paid the monetary sanctions.  (Id. & fn. 1.)

On January 18, 2023, the court found the ultimate sanction of termination was not yet appropriate.  Plaintiff’s counsel had shown recent progress in getting in touch with his client, who was incarcerated.  The court continued the hearing on this motion to this date and ordered plaintiff to file any further opposition by March 17.  Plaintiff has not done so.

Sanctions short of termination have been ineffective to curb plaintiff’s misuse of the discovery process.  Defendants served these discovery requests in February 2022.  (Danna Decl., ¶ 3.)  The court ordered plaintiff to serve responses and pay monetary sanctions in August 2022.  Defendants have waited over a year since they served the discovery.  They have still not received any response. 

The court’s prior orders did not result in meaningful progress.  Two months ago, plaintiff’s counsel showed progress in locating his client—but has not yet communicated with him.  Plaintiff’s refusal to respond to discovery and disobedience of the court’s orders has substantially prejudiced defendants’ ability to defend themselves.  One who chooses to file a lawsuit must accept the obligations to participate in discovery and obey court orders. 

Defendants have been completely unable to accomplish the objects of discovery.  “The purpose of discovery is to make trial ‘ “less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” ’ ”  (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 473.)  “ ‘An important aspect of legitimate discovery from a defendant’s point of view is the ascertainment, in advance of trial, of the specific components of plaintiff’s case so that appropriate preparations can be made to meet them.  It is impossible to discover this other than from the plaintiff.’ ”  (Id. at pp. 473-474.) 

Defendants need discovery to prepare for the trial, which is set for May 17, six weeks after this hearing.  Absent terminating sanctions, plaintiff’s conduct would result in running out the clock and subjecting defendants to trial by surprise.  Under these circumstances, the court finds terminating sanctions appropriate. 

Disposition

Defendants NGL Logistics, LLC and Jae Joon Lee’s motion for terminating sanctions is granted. 

Under Code of Civil Procedure section 2023.030(d)(3), the court hereby dismisses the action as against defendants NGL Logistics, LLC and Jae Joon Lee with prejudice. 

Defendants NGL Logistics, LLC and Jae Joon Lee are ordered to submit a proposed judgment of dismissal forthwith.

The Court’s Own Motion to Dismiss for Delay in Prosecution

“The court on its own motion may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.”  (Cal. Rules of Court, rule 3.1340(a).)  “California courts have inherent power to dismiss civil cases for unreasonable, inexcusable delay in prosecution.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758.) 

More than two years have passed since plaintiff commenced this action.  The remaining defendant, Greg’s Tire Services, an unknown business entity, had its default entered in March 2022.  Plaintiff has not requested entry of default judgment against it.  Plaintiff has not brought the action to trial.  The action has not been conditionally settled.  The court hereby sets a hearing on its own motion to dismiss for delay in prosecution on May 1, 2023, at 9:00 a.m.  The clerk shall give notice of the hearing by mail.