Judge: Audra Mori, Case: 20STCV00327, Date: 2022-08-04 Tentative Ruling

Case Number: 20STCV00327    Hearing Date: August 4, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Edgar Larios (“Larios”) and Shahnazi Faezeh filed this action against Defendants Christian Mendez and Armando Reyes (collectively, “Defendants”) for damages arising from a motor vehicle accident. 

Defendants move for terminating sanctions against Larios dismissing Larios’s complaint against Defendants because of Larios’s misuse of the discovery process by failing to appear for his notice deposition and failing to comply with the court’s June 15, 2022 Order compelling Larios to appear for his deposition and to pay sanctions.  Following the Order, Defendants noticed Larios’s deposition for June 28, 2022, but Larios again failed to appear.  Additionally, Defendants aver the previously imposed monetary sanctions have not been paid.  Defendants further requests monetary sanctions of $1,108.05 against Larios and Larios’s counsel in connection with the instant motion. 

2. Motion for Terminating Sanctions

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process.  A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment.  (Code Civ. Proc., § 2023.030(d).)  A violation of a discovery order is sufficient for the imposition of terminating sanctions.  (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.)  Terminating sanctions are appropriate when a party persists in disobeying the court's orders.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.) 

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo, 84 Cal.App.3d at 793.)  "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."  (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)  While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery."  (Deyo, 84 Cal.App.3d at 793.)  "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations."  (Ibid.)  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information.  (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

Here, on June 15, 2022, the court granted Defendants’ motion to compel Plaintiff to appear for deposition, finding Plaintiff had repeatedly failed to do so despite proper notice of the depositions.  On June 16, 2022, Defendants served notice of the ruling on Larios and noticed his deposition for June 28, 2022.  Larios failed, however, to appear for the June 28, 2022 deposition.  Further, Defendants attest that Larios has not paid the monetary sanctions previously imposed in the June 15, 2022 Order.  Defendants move for terminating sanctions as a result. 

Pursuant to Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 776, the court should typically impose lesser sanctions prior to awarding terminating sanctions.  However, there are circumstances where imposition of terminating sanctions is appropriate without first imposing issue and/or evidentiary sanctions.  (See Laguna Auto Body v. Farmers Ins. Exch. (1991) 231 Cal.App.3d 481, 490-91.) 

Terminating sanctions are imposed at this time for two reasons.  First, Defendants cannot meaningfully prepare for trial without Larios’s deposition, and therefore an issue or evidentiary sanction would be tantamount to a terminating sanction.  Second, Larios has not opposed this motion.

Defendant also seeks monetary sanctions in connection with this motion pursuant to CCP §§ 2030.290 and 2031.300.  The imposition of terminating sanctions does not make the imposition of monetary sanctions unjust.  (See Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 76-78.)

Here, the court awards Defendants the requested two hours for preparing the motion and appearing at the hearing at the reasonable rate of $200 per hour, for a total of $400 in attorney’s fees.  Further, the court awards Defendants the motion filing fee of $60.00 and the deposition reporting fees of $548.05 for the June 28, 2022 deposition as costs.  

Sanctions are sought and imposed against Larios and Larios’s attorney of record, jointly and severally.  Larios and Larios’s counsel are ordered to pay sanctions to Defendants, by and through counsel of record, in the total amount of $1,008.05, within twenty days. 

The motion is granted.  Larios’s case against Defendants is dismissed.

Defendants are ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 4^th day of August 2022