Judge: Audra Mori, Case: BC709086, Date: 2022-09-27 Tentative Ruling

Case Number: BC709086    Hearing Date: September 27, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Kinta Smith filed this action against Defendants LA City Cab dba City Cab and Sheikh Salam (collectively, “Defendants”) for damages arising from a motor vehicle accident. 

Defendants move for terminating sanctions against Plaintiff dismissing her complaint because of Plaintiff’s misuse of the discovery process by failing comply with Court’s May 27, 2022 Order compelling Plaintiff to appear for her deposition.  Additionally, Defendants seek monetary sanctions of $989.95 against Plaintiff for this 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].)

In this case, on May 27, 2022, the Court heard and granted Defendants’ motion to compel Plaintiff’s deposition at a date and time to be noticed by Defendants.  Defendants assert that on this same date, they served Plaintiff with a Notice of Taking of Deposition setting Plaintiff’s deposition for June 21, 2022.  Defendants aver that Plaintiff did not object to the deposition, but Plaintiff failed to appear, and Defendants obtained a certificate of non-appearance. 

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 or evidentiary sanctions.  (See Laguna Auto Body v. Farmers Ins. Exch. (1991) 231 Cal.App.3d 481, 490-91.) 

Terminating sanctions are warranted in this action at this time.  The evidence shows Plaintiff has failed to comply with the Court’s order to appear for her deposition.  Defendants cannot meaningfully prepare for trial without Plaintiff’s deposition, and therefore an issue or evidentiary sanction would be tantamount to a terminating sanction.  Moreover, Plaintiff has not opposed this motion and appears to have abandoned the case. 

The motion is granted.  Plaintiff’s case against moving Defendants is dismissed.

Defendants also seeks monetary sanctions in connection with this motion pursuant to CCP § 2023.030.  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, Defendants are awarded two hours for preparing the motion and one hour for appearing at the hearing all at the reasonable rate of $185 per hour, for a total of $555 in attorney fees.  Further, the Court awards Defendants motion the filing fee of $64.95 as costs.  

Sanctions are sought and imposed against Plaintiff, who is in pro per.  Plaintiff is ordered to pay sanctions to Defendants, by and through counsel of record, in the total amount of $619.95, within twenty days. 

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 27^th day of September 2022