Judge Cherol J. Nellon, Case 21STCV02213 2023-05-15 Tentative Ruling

Judge: Cherol J. Nellon, Case: 21STCV02213, Date: 2023-05-15 Tentative Ruling

Case Number: 21STCV02213 Hearing Date: May 15, 2023 Dept: 28

Defendants Mahikumakani Daniel Crabbe and HI9 Transport 's Motion for Terminating Sanctions; Defendants Mahikumakani Daniel Crabbe and HI9 Transport 's Motion to Continue Trial

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On January 20, 2021, Plaintiffs Jeremy Scholl (“Jeremy”) and Michelle Scholl (“Michelle”) filed this action against Defendants Ananias G. Nunez (“Nunez”), Mahikumakani Daniel Crabbe (“Crabbe”) and HI9 Transport (“HI9”) for motor vehicle negligence.

On March 15, 2021, Nunez filed an answer. On January 3, 2022, Crabbe and HI9 filed an answer.

On March 28, 2023, Crabbe and HI9 (“Moving Defendants”) filed a Motion for Terminating Sanctions to be heard on April 26, 2023. The Court continued the hearing to May 15, 2023.

On April 21, 2023, Moving Defendants filed a Motion to Continue Trial to be heard on May 15, 2023.

The trial date currently set for June 14, 2023.

PARTY’S REQUEST

Moving Defendants request the Court issue terminating sanctions against Plaintiffs and impose sanctions totaling $1,110.00 on Plaintiffs.

Moving Defendants request the Court continue trial at least six months.

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].)

CRC rule 3.1332(b) outlines that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

Under CRC 3.1332(c), The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances

relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. CRC 3.1332(d).

DISCUSSION

Terminating Sanctions

On May 4, 2022, Crabbe served discovery on Plaintiffs. Plaintiffs did not serve timely responses. Crabbe brought forward motions to compel, which were heard and granted on February 7, 2023. Plaintiffs were ordered to serve discovery responses by March 9, 2023—Plaintiffs have yet to provide any discovery responses. However, according to Moving Defendants’ Motion to Continue Trial, this is due in part to the fact that Plaintiffs’ counsel recently passed away. Plaintiffs’ counsel has indicated they intend to respond to discovery. Therefore, the Court cannot determine at this time whether terminating sanctions are warranted. The Court continues the hearing on the motion for terminating sanctions, to determine whether terminating sanctions are warranted.

The Court similarly continues the hearing on the motion to continue trial, as whether there is a basis to continue trial is based on part on the motion for terminating sanctions. If Plaintiffs provide discovery, and terminating sanctions are denied, there will be a basis for a continue. If Plaintiffs do not provide discovery, and terminating sanctions are granted, there will be no need for a continuance based on Moving Defendants’ moving papers. Therefore, the Court continues both motions.

CONCLUSION

Defendant Marina Rebecca Johnson-Rhoades's Motions for Terminating Sanctions and to Continue Trial are CONTINUED to May 25, 2023, at 1:30 p.m., in Department 28 of the Spring Street Courthouse.

Defendant is ordered to give notice of this ruling.