Judge: Audra Mori, Case: 21STCV01518, Date: 2022-10-31 Tentative Ruling

Case Number: 21STCV01518    Hearing Date: October 31, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Lien Nguyen (“Plaintiff”) filed this action against Defendants Manuel Henry Alvarado (“Alvarado”), the Kroger Co. (“Kroger”), and Ralphs Grocery Company for damages arising from a motor vehicle accident.  Plaintiff has dismissed Alvarado and Kroger from this action.

At this time, Defendant Ralphs Grocery Company (“Defendant”) moves for terminating sanctions against Plaintiff dismissing her complaint for failing to comply with the Court’s June 17, 2022 order directing Plaintiff to appear for her deposition and pay monetary sanctions to Defendant. 

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].)

In this case, on June 17, 2022, Defendant’s motions to deem request for admissions admitted and to compel Plaintiff to appear for her deposition were each unopposed and granted.  As relevant here, Plaintiff was ordered to appear for her deposition at a time, place, and location to be noticed by Defendant, and sanctions of $535 for the motion to compel deposition were imposed on Plaintiff to be paid within 20 days.  Defendant served notice of the ruling on Plaintiff, and on June 28, 2022, Defendant noticed Plaintiff’s court ordered deposition for August 23, 2022, which Defendant avers was the fifth time Plaintiff’s deposition was being noticed.  Plaintiff did not respond or object to Defendant’s notice, but Plaintiff failed to appear for her deposition.  Defendant moves for terminating due to Plaintiff’s failure to appear for her deposition as ordered.

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.)  Defendant’s evidence shows that Plaintiff has failed to comply with the previous order compelling Plaintiff to appear for her deposition and failed to pay the monetary sanctions imposed on her.     

Terminating sanctions are imposed at this time for two reasons.  First, Defendant cannot meaningfully prepare for trial without Plaintiff’s deposition, and therefore an issue or evidentiary sanction would be tantamount to a terminating sanction.  Second, Plaintiff has not opposed this motion and appears to have abandoned the case.  Defendant does not seek imposition of monetary sanctions in connection with the motion, and none are imposed. 

The motion is granted.  Plaintiff’s complaint against Defendant is dismissed with prejudice.

Moving Defendant is 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 31^st day of October 2022