Judge: Bruce G. Iwasaki, Case: 20STCV49390, Date: 2022-10-10 Tentative Ruling

Case Number: 20STCV49390    Hearing Date: October 10, 2022    Dept: 58

JUDGE BRUCE G. IWASAKI

Hearing Date:             October  10, 2022

Case Name:                 Rita Ortiz, et al. v. Silvia Sandoval, et al.

Case No.:                    20STCV49390

Matter:                        Motion to Dismiss Plaintiffs’ Complaint and for Monetary Sanctions

Moving Party:             Defendant 1033 3^rd Street Apartments, LLC

Responding Party:      Unopposed

Background and Procedural History

           This is a wrongful eviction case.  On December 28, 2020, Rita Ortiz and Stephanie Ortiz, a minor through her guardian ad litem, Rita Ortiz (Plaintiffs) sued Defendants Silvia Sandoval, 1033 3^rd Street Apartments, LLC, and 1033 3^rd Street Management, LLC for wrongful eviction, forcible entry and detainer, utility interruption to terminate tenancy, conversion, defamation, and intentional/negligent infliction of emotional distress.

           Plaintiffs allege that they paid Defendants rent and deposit but were not allowed to move into the apartment until two days later.  One week later, Defendants allegedly changed the locks and refused to allow Plaintiffs to retrieve their property within the unit.  The Complaint further avers that Defendants made defamatory remarks about Plaintiffs.

           One year after filing the Complaint, Plaintiff’s counsel, Reyes Valenzuela, moved to withdraw as counsel.[1] In January 2022, the Court granted the motion, and the order was served on Rita Ortiz.  Plaintiffs have not retained new counsel.

           On March 29, 2022, 1033 3^rd Street Apartments, LLC (Defendant) propounded three sets of discovery on Plaintiffs: Form Interrogatories, Special Interrogatories, and Request for Production of Documents.[2]

           On June 3, 2022, 1033 3^rd Street Apartments, LLC (Defendant) moved to compel responses to all three sets of discovery.  Plaintiffs did not appear at the hearing.  The Court ordered Plaintiffs to respond to the discovery within 20 days but denied Defendant’s request for monetary sanctions.  Since then, Plaintiffs have not responded to the discovery.

           On August 25, 2022, Defendant moved to dismiss Plaintiffs’ Complaint for failure to respond to discovery and comply with the Court’s order.  Defendant also requests $1,580.00 in monetary sanctions.  No opposition was filed.

           Because Plaintiff has abused the discovery process, the Court dismisses this action with prejudice. The Court declines to award monetary sanctions.  

Discussion

           Defendant requests that the Court dismiss this case and award $1,580.00 in monetary sanctions.  The amount reflects an estimated eight hours of work (motion preparation, hearing attendance) at $190.00 per hour, and a $60.00 filing fee. (Kahanowitch Decl., ¶ 11.)

Dismissal is warranted because of Plaintiffs’ failure to comply with the order compelling discovery responses, and their subsequent failure to oppose this motion to dismiss.

           A terminating sanction “is a proper sanction to punish the failure to comply with a rule or an order only if the court’s authority cannot be vindicated through the imposition of a less severe alternative.”  (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331; see also Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80 [“[W]here 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”].)

           While terminating sanctions are generally imposed as a last resort, “even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective.” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191-192, disapproved on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516, fn. 17.)

           Here, since counsel withdrew from the case, Plaintiffs’ only action was to appear in pro per at the March 7, 2022 Status Conference.  They have not responded to any of the written discovery, failed to file a Case Management Statement under Rule of Court 3.725(a), and failed to oppose this motion to dismiss their Complaint.  Defendant reportedly contacted Plaintiff Rita Ortiz by phone in May 2022, who indicated she was still searching for counsel to represent her; however, no appearances have since been made.  (Kahanowitch Decl. in support of Motion to Compel, ¶¶ 6-8.)

           The Court is inclined to dismiss this case given Plaintiffs’ failure to secure counsel and move this case forward.  As Plaintiffs do not oppose this motion, they appear to have abandoned the case and so it is apparent that lesser sanctions would be ineffective.

           In the previously set hearing on September 26, 2022, Plaintiff failed to appear.  Because of the consequences of this motion, at the Court’s direction, the clerk contacted her and got her on the telephone for the hearing.  Plaintiff claimed she was ill and could not attend.  Although she failed to contact the Court in advance, because she was unrepresented the Court decided to continue the matter to permit her to secure counsel, respond to discovery, or file a response to the motion.  She has done none of these.

           Accordingly, the Court dismisses this matter with prejudice.  The Court declines to award monetary sanctions.