Judge: Audra Mori, Case: BC689021, Date: 2022-09-08 Tentative Ruling

Case Number: BC689021    Hearing Date: September 8, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Oliver Szakall (“Szakall”) filed this action against Defendants Frankie Munoz (“Munoz”), KAM’s Automotive, Inc., Brent McNamee (“McNamee”), and United Recovery, Inc. (“United Recovery”) for damages arising from a motor vehicle accident.  On April 30, 2019, this matter was consolidated with Case No. 17STLC00906, which concerned an action filed by the passenger in Plaintiff’s vehicle, Abel Vasquez (“Vasquez”), at the time of the subject accident.  McNamee and United Recovery (“Cross-Complainants”) have filed a cross-complaint against Munoz for the accident. 

            At this time, Cross-Complainants move for terminating sanctions against Munoz in the form of an order entering judgment in favor of Cross-Complainants on all causes of action in their cross-complaint against Munoz.  Alternatively, Cross-Complainants seek issue and/or evidentiary sanctions against Munoz. 

            Cross-Complainants contend that Munoz failed to comply with the Court’s June 10, 2022 Order compelling Munoz to appear for deposition.  Additionally, Cross-Complainants seek monetary sanctions of $1,410.50 against Munoz.  The motion is unopposed.

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, Cross-Complainants submit evidence showing that after the Court ordered Munoz to appear for deposition, Cross-Complainants noticed Munoz’s deposition for June 24, 2022.  Cross-Complainants attest that although Munoz confirmed the email address to which a link was sent for the remote deposition and confirmed he would appear, Munoz failed to appear for the court ordered deposition. 

The Court notes that Munoz is currently in default as to Cross-Complainants’ cross-complaint.  (Request for Entry of Default filed April 22, 2021.)  Cross-Complainants now request that judgment be entered on their crossclaims against Munoz.  However, Cross-Complainants do not submit any evidence regarding the amount of judgment sought against Munoz.  Under California law, the party in default has confessed the material allegations of the complaint.  (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362.)  When evaluating a request to enter a default judgment, if the complaint properly states a cause of action, the only additional proof required for the judgment is that needed to establish the amount of damages.  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 898.)  Accordingly, because no evidence is submitted concerning Cross-Complainants’ damages, the Court cannot enter default judgment in favor of Cross-Complainants at this time.  Furthermore, the Court notes that Munoz answered Plaintiff’s complaint filed against Munoz and Cross-Complainants upon which Cross-Complainants’ crossclaims arise.  Generally, where parties are jointly liable on the same obligation, it is improper to enter a default judgment against one while the action remains pending against others.  (See Mirabile v. Smith (1953) 119 Cal.App.2d 685, 688-89.)  Thus, the Court finds entering a judgment against Munoz at this time while Plaintiff’s claims are pending against Munoz and Cross-Complainants improper for this further reason. 

The request for a judgment against Munoz is denied. 

Nonetheless, Cross-Complainants also seek the following evidentiary and issue sanctions: “(1) an evidentiary and/or issue sanction establishing that Munoz’s negligence was the sole cause of the alleged motor vehicle accident that is the subject of this litigation; and/or (2) an evidentiary and/or issue sanction precluding Munoz from testifying at the time of the trial of this action.”  (Mot. at p. 11:11-14.)  The Court finds evidentiary sanctions appropriate as Cross-Complainants cannot meaningfully prepare for trial without Munoz’s deposition, and Munoz has not opposed this motion.  Based on Munoz’s failure to appear for his court-ordered deposition, the Court issues an evidentiary sanction precluding Munoz from testifying at the time of the trial of this action. 

Cross-Complainants’ request for evidentiary sanctions is granted as stated above. 

Plaintiff also seeks monetary sanctions in connection with this motion.  Notably, 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, sanctions are warranted against Munoz.  Cross-Complainants are awarded three hours for preparing the moving papers and one hour for appearing at the hearing all at the reasonable rate of $185 per hour, for a total attorney fees award of $740.00.  Further, Cross-Complainants are awarded the $60 motion filing as costs. 

Sanctions are sought and imposed against Munoz, who is in pro per.  Munoz is ordered to pay sanctions to Cross-Complainants, by and through counsel of record, in the total amount of $800.00, within twenty days. 

Cross-Complainants 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 8^th day of September 2022