Judge: Cynthia A Freeland, Case: 37-2021-00042181-CU-PA-NC, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 03, 2023

08/04/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2021-00042181-CU-PA-NC KNIGHT VS RAMIREZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/07/2023

Defendant Josefa Ramirez ('Defendant')'s motion to dismiss Plaintiff Nicole Knight ('Plaintiff')'s Complaint is granted in part and denied in part.

Initially, the court notes that on April 28, 2023, the court granted Irving Pedroza's motion to be relieved as counsel for Plaintiff. See ROA Nos. 48-49. However, the court made clear that the order relieving Mr.

Pedroza as counsel would be effective once he filed with the court proof of service of the signed order upon Plaintiff. As of the date of this ruling, the court has no record of Mr. Pedroza accomplishing the foregoing. Consequently, Mr. Pedroza remains counsel of record for Plaintiff.

That being said, the court construes Plaintiff's lack of opposition as a concession of the motion's merits.

See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on January 10, 2023, Defendant filed separate motions to compel Plaintiff to provide verified responses to Defendant's Form Interrogatories – General (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) (collectively, the 'Discovery Motions'). See ROA Nos.

23, 25. Plaintiff did not file written oppositions to, or appear at the hearing for, the Discovery Motions. On June 2, 2023, the court granted the Discovery Motions and: (1) directed Plaintiff to serve verified Code-compliant responses, without objections, and documents responsive to the discovery requests within ten (10) days of the hearing, or by June 12, 2023, and (2) awarded Defendant $920.00 in sanctions against Plaintiff for all three motions, due and payable to Defendant's counsel within thirty (30) days of the hearing, or by July 3, 2023 (the 'Discovery Orders'). See ROA Nos. 52-53. On June 2, 2023, Defendant served Mr. Pedroza by mail and electronically with a Notice of Ruling on the Discovery Motions. See Hong Decl., Ex. A. To date, Plaintiff has not complied with the Discovery Orders in any way. Ibid., ¶ 8.

The court may issue any just order against a party who disobeys an order compelling responses to written interrogatories or requests for production of documents, including monetary, issue/evidentiary, or terminating sanctions. See Cal. Code Civ. P. §§ 2023.010(g), 2023.030(a)-(f), 2030.290(c), 2031.300(c).

The court maintains broad discretion in determining an appropriate sanction for misuse of the discovery process. See Lopez v. Watchtower Bible & Tract Society of New York (2016) 246 Cal. App. 4th 566, 604.

In so doing, the court 'should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery.' Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516 (internal quotation omitted). The discovery statutes prescribe an incremental approach to sanctions. 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. If a lesser sanction fails to curb misuse, a greater sanction is Calendar No.: Event ID:  TENTATIVE RULINGS

2993552 CASE NUMBER: CASE TITLE:  KNIGHT VS RAMIREZ [IMAGED]  37-2021-00042181-CU-PA-NC warranted: continuing 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.

Terminating sanctions are generally regarded as a last resort to be applied sparingly. See Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal. App. 5th 1098, 1118. Before issuing terminating sanctions, the court should consider the totality of the circumstances, including: (1) whether the respondent's conduct was willful; (2) the detriment to the propounding party; (3) the number of formal and informal attempts to obtain the discovery; (4) whether the respondent has a history of discovery abuses; and (5) whether the respondent's noncompliance persisted despite previous court orders or warnings that greater sanctions might follow. Ibid. at 1117-1118; Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246. See also Milekowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279-280 ('[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.').

Defendant moves to dismiss the Complaint for Plaintiff's failure to comply with the Discovery Orders. The court construes this as a request for terminating sanctions. The court finds that terminating sanctions are not yet appropriate under the totality of the circumstances. Plaintiff unquestionably misused the discovery process by failing to comply with the Discovery Orders. Plaintiff's conduct has impeded Defendant's ability to obtain relevant discovery and prepare for trial. However, there is insufficient evidence for the court to conclude that Plaintiff's conduct was willful, i.e., that she consciously or intentionally failed to comply with the Discovery Orders. See Sauer v. Sup. Ct. (1987) 195 Cal. App. 3d 213, 227-228. This is especially true given Mr. Pedroza's purported withdrawal as counsel for Plaintiff.

Moreover, the above authorities make clear that terminating sanctions are generally regarded as a last resort to be applied sparingly, and an incremental approach must be taken. In this instance, Plaintiff does not have an extensive history of discovery abuses – indeed, the Discovery Orders are the only identified court orders that Plaintiff violated. While the court appreciates that Plaintiff failed to appear for her duly noticed deposition on February 10, 2023, Defendant has neither sought nor obtained a court order directing Plaintiff to attend her deposition, i.e., Plaintiff has not violated a court order with regards to her deposition. See Hong Decl., Ex. B. Additionally, the court has not, before this ruling, put Plaintiff on notice that terminating sanctions might follow should she persist in violating court orders. At the same time, monetary sanctions were plainly insufficient to compel Plaintiff's compliance with the Discovery Orders. The court thus imposes issue/evidentiary sanctions against Plaintiff prohibiting her from introducing, offering into evidence, or referring to any evidence sought in the discovery requests that were the subject of the Discovery Motions.

In light of the foregoing, the court: (1) denies Defendant's request for terminating sanctions, and (2) issues issue/evidentiary sanctions against Plaintiff as set forth herein. The court places Plaintiff on notice that further misuses of the discovery process and/or her continued failure to participate in discovery will result in more severe sanctions in the future, inclusive of terminating sanctions.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 23, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 23, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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