Judge: Colin Leis, Case: 20GDCV00753, Date: 2022-11-07 Tentative Ruling
Case Number: 20GDCV00753 Hearing Date: November 7, 2022 Dept: 3
Superior Court of California
County of Los Angeles – NORTHEAST District
Department
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[Tentative]
Order RE: defendant’s motion for monetary sanctions
and a terminating sanction |
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MOVING PARTY: Defendant Jack Diramarian
RESPONDING PARTY: N/A
Defendant’s Motion for Monetary
Sanctions and a Terminating Sanction
The court
considered the moving papers filed in connection with this motion. No
opposition was filed.
BACKGROUND
Plaintiff Joey Tiongson filed this
action on September 18, 2020, against Defendants Jack Diramarian (“Defendant”)
and Scientific Automotive.
On August 23, 2022, the court issued an order granting Defendant’s
motion to compel the deposition of Plaintiff, which was to take place at 9:00 a.m.
on August 31, 2022. The court also
awarded monetary sanctions to Defendant in the amount of $1,935.00. On August 24, 2022, Defendant’s counsel served
the court’s order compelling Plaintiff’s appearance for his deposition on
Plaintiff and Plaintiff’s then-attorney, Bruce McIntosh (“McIntosh”).[1]
(Declaration of Jeffrey Weber “Weber Decl.,” ¶¶ 5; Ex. B; Ex. C.) Additionally, McIntosh also personally served
the order on Plaintiff (his then-client) at Plaintiff’s home. (Decl. ¶ 6; Ex.
D.) Plaintiff failed without explanation
to appear at his 9:00 a.m. deposition on August 31, 2022. (Id. at ¶ 7, 8.) When Plaintiff failed to appear, Defendant’s
counsel attempted to contact Plaintiff directly, but Plaintiff did not respond.
(Id. at ¶ ¶ 9. 10.) At 10:17 a.m.,
Defendant took the nonappearance of Plaintiff at his deposition. (Id. at
¶ 10; Ex. E.)
Defendant now moves for a terminating sanction in the form of an order
striking the Complaint and monetary sanctions against Plaintiff in the amount
of $3,465.00. (Motion for Monetary Sanctions and a Terminating Sanction “Motion,”
¶ 9.)
LEGAL STANDARD
Once a motion to compel
responses is granted, continued failure to respond or inadequate responses may
result in more severe sanctions. (See, e.g., Code Civ. Proc., §§
2030.290, subd. (c), 2031.310, subd. (i).) Disobeying a court order to
provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) A broad
range of sanctions exists against anyone who misuses the discovery process,
including monetary, evidentiary, issue, and terminating sanctions. (Code Civ. Proc., § 2023.030.)
“[T]he sanctioned
party's history as a repeat offender is not only relevant, but also
significant, in deciding whether to impose terminating sanctions.” (Liberty Mutual
Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093,
1106.) “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.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.)
Plaintiff is a “repeat offender” in his failure to
participate in discovery. The court is
mindful that the court ordinarily must deploy sanctions in an escalating
manner, and should impose terminating sanctions only when previous, less severe
sanctions have failed to bring about compliance. “[C]ontinuing misuses of the discovery process
warrant incrementally harsher sanctions until the sanction is reached
that will curb the abuse.” (Doppes v. Bentley Motors, Inc. (2009) 174
Cal.App.4th 967, 992 [emphasis added].) Here, however, Plaintiff twice failed
to appear for his deposition. The second time he failed to appear he was under
court order to do so and was amply alerted, including by his own counsel’s
service of the August 23 order, of his obligation to appear. Moreover, and significantly
for the court, Plaintiff has failed to oppose in writing or in person the
pending motion for terminating sanctions even though the motion told him
dismissal of his case was possible. And
finally, the court posted on the court’s website two days before the hearing on
Defendant’s motion for terminating sanctions this tentative decision to let
Plaintiff know what was at stake [and yet Plaintiff failed to appear or to
oppose]. Under the circumstances, the
court finds terminating sanctions are appropriate. (If Plaintiff had opposed in
any way the motion to terminate, the court would not likely have dismissed the
case.)
Defendant’s counsel states his usual billing rate is $375
per hour and that he spent an estimated 5 hours researching and drafting the
instant motion. (Weber Decl. at ¶ 12, 13.)
Defendant further estimates 2 hours of prospective work in appearing at
the November 3, 2022 hearing and replying to Plaintiff’s Opposition. (Id.) Additionally, Defendant notes the filing fee
and hearing reservation fee for the court totaled $60.00, and states Defendant
suffered “a deposition cost associated with Plaintiff’s nonappearance in the
amount of $780.00.” (Id.)
As Plaintiff did not file an Opposition to this motion, the
court does not consider the prospective hours in calculating monetary
sanctions. The court grants monetary
sanctions to Defendant in the amount of $2,715.00, representing 5 hours of work
at $375 per hour, the $60.00 filing and hearing reservation fees, and the
$780.00 deposition cost.
CONCLUSION
The court grants Defendant’s motion.
The court dismisses Plaintiff’s complaint without prejudice.
The court orders Plaintiff to pay Defendant’s counsel monetary sanctions
in the amount of $2,715.00 within 30 days of this order.
Defendant is ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Colin Leis
Judge of the Superior Court
[1]
Two days earlier, the court had granted McIntosh’s motion to be relieved as
Plaintiff’s counsel, but McIntosh had not yet filed the proof of service for
the signed order relieving him, thus he was still technically representing
Plaintiff. (See Aug. 22, 2022 order)