Judge: Cherol J. Nellon, Case: 19STCV10814, Date: 2023-04-19 Tentative Ruling
All parties are
urged to meet and confer with all parties concerning this tentative ruling to
see if they can reach an agreed-upon resolution of their matter. If
you are able to reach an agreement, please notify the courtroom staff in
advance of the hearing if you wish to submit on the tentative ruling rather
than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include
the word "SUBMITS" in all caps and the Case Number in the Subject
line. In the body of the email, please provide the date and time of the
hearing, your name, your contact information, the party you represent, and
whether that party is a plaintiff, defendant, cross-complainant,
cross-defendant, claimant, intervenor, or non-party, etc.
Please be
advised that if you submit on the tentative and elect not to appear at the
hearing, the opposing party may still appear at the hearing and argue the
matter, and the court could change its tentative based upon the
argument. Unless you receive a submission from all other parties in
the matter, you should assume that others might appear at the hearing to argue.
If you submit, but still intend to appear, include the words "SUBMITS, BUT
WILL APPEAR" in the Subject line. If you elect to
argue your matter, you are urged to do so remotely, via Court-Connect.
Note that once the Court has issued a tentative, the Court has the inherent
authority not to allow the withdrawal of a motion and to adopt the tentative
ruling as the order of the court.
If you submitted a courtesy copy of
your papers containing media (such as a DVD or thumb drive), unless you request
the return of the media in your papers, the court will destroy it following the
hearing of your matter.
Case Number: 19STCV10814 Hearing Date: April 19, 2023 Dept: 28
Defendant Cedars-Sinai Medical Center’s Motion for Terminating Sanctions
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On March 29, 2019, Plaintiff Barbara Russo (“Plaintiff”) filed this action against Defendant Cedars-Sinai Medical Center (“Defendant”) for assault, battery and intentional infliction of emotional distress.
On May 16, 2019, Defendant filed an answer.
On March 24, 2023, Defendant filed a Motion for Terminating Sanctions to be heard on April 19, 2023.
The trial date currently set for May 17, 2023.
PARTY’S REQUEST
Defendant requests the Court order Plaintiff to appear for her deposition and impose monetary and issue sanctions against Plaintiff. In the alternative, Defendant requests the Court grant terminating sanctions.
LEGAL STANDARD
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].)
DISCUSSION
Defendant completed Volume 1 of Plaintiff’s deposition on October 7, 2021; the deposition ended prematurely at Plaintiff’s request. Defendant has been attempting to complete Plaintiff’s deposition since, noticing the deposition multiple times. On February 17, 2023, the Court granted Defendant’s motion to compel, ordering Plaintiff to appear for her deposition by March 17, 2023. Plaintiff has not appeared for a deposition, nor has Plaintiff provided any dates for availability.
Plaintiff has failed to appear for her deposition for over a year, and now has failed to abide by a Court order. The Court finds a basis for terminating sanctions, as there is no indication that any lesser order would result in Plaintiff producing discovery.
Defendant requests monetary sanctions totaling $1,560.00, based upon 6 hours of attorney’s work at a rate of $250.00 per hour and one $60.00 filling fee. Attorney’s work is based on 4 hours drafting and 2 hours attending the hearing and replying to any opposition. As Plaintiff did not oppose the motion, the Court awards sanctions based on 4 hours of attorney’s work. Sanctions total $1,060.00.
CONCLUSION
Defendant Cedars-Sinai Medical Center’s Motion for Terminating Sanctions is GRANTED. Plaintiff’s complaint against Defendant is dismissed, with prejudice.
Defendant Cedars-Sinai Medical Center’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay $1,060.00 in sanctions to Defendant within 30 days of the hearing on the motion.
Defendant is ordered to give notice of this ruling.