Judge: Cherol J. Nellon, Case: 21STCV21149, Date: 2023-05-09 Tentative Ruling

Case Number: 21STCV21149    Hearing Date: May 9, 2023    Dept: 28

Defendant City of Long Beach’s Motion for Terminating Sanctions

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On June 4, 2021, Plaintiffs Jose Luis Barajas (“Jose”), Maria Diaz (“Diaz”), Mayra Alejandra Barajas (“Mayra”), Maria Barajas (“Maria”) and Ivan Barajas (“Ivan”) filed this action against Defendants City of Long Beach (“City”), Jyvante West (“West”) and Meena Wright (“Wright”) for wrongful death (negligence), wrongful death (negligence per se) and negligent entrustment.

On August 23, 2021, City filed an answer.

On February 23, 2023, the City filed a Motion for Terminating Sanctions to be heard on March 29, 2023. The Court continued the hearing on the motion to May 9, 2023. On March 16, 2023, Plaintiffs filed an opposition. On March 21, 2023, the City filed a reply.

The trial date currently set for June 12, 2023.

PARTY’S REQUEST

The City requests the Court grant terminating sanctions against Diaz. In the alternative, the City seeks an order entering default judgment against Diaz, issuing evidence sanctions against Diaz by prohibit Diaz from testifying at trial, and imposing monetary sanctions on Diaz totaling $3,513.00.

Plaintiffs request the Court deny the motion.

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

The City has attempted to take Diaz’s deposition for over a year; on January 25, 2023, the Court granted the City’s motion to compel, ordering Diaz to appear for a video deposition within 10 days of the hearing on the motion. The City attempted to schedule the deposition with Diaz’s counsel, but Diaz’s counsel indicated she no longer can contact Diaz and thus could not arrange for a deposition.

 Diaz’s counsel requested additional time to attempt to get in contact with Diaz before the imposition of terminating sanctions. Since the filling of Diaz’s opposition, the Court continued the hearing on this motion an additional month. There is no indication that counsel has been able to contact Diaz—in fact, counsel submitted a request to be relieved as counsel on the basis of a complete breakdown in attorney-client communication. The Court has yet to grant relief, and thus the City’s motion was properly served on Diaz’s attorney.

Diaz has failed to abide by a Court order and to otherwise communicate with the City regarding her deposition. There is no indication that less severe sanctions would result in Diaz complying with her discovery obligations. The Court grants the motion.

CONCLUSION

Defendant City of Long Beach’s Motion for Terminating Sanctions is GRANTED. Diaz’s complaint is dismissed, with prejudice.

Moving Defendants may file a reply brief by May 5, 2023.

Moving Defendants are ordered to give notice of this ruling.