Judge: Daniel M. Crowley, Case: 20STCV26243, Date: 2022-08-30 Tentative Ruling

Case Number: 20STCV26243    Hearing Date: August 30, 2022    Dept: 28

Defendant Murray Plumbing and Heating Corporation’s Motion for Terminating Sanctions; Defendant Murray Plumbing and Heating Corporation’s Motion to Continue Trial

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

BACKGROUND

On July 13, 2020, Plaintiff Wanda Smith (“Plaintiff”) filed this action against Defendants Robert W. Cowart (“Cowart”) and Murray Plumbing and Heating Corporation (“Murray”) for motor vehicle negligence and general negligence.

On September 2, 2020, Murray filed an answer.

On August 2, 2022, Murray filed a Motion for Terminating Sanctions to be heard on August 30, 2022.

On August 2, Murray filed a Motion to Continue Trial to be heard on August 30, 2022.

The trial date currently set for April 14, 2023.

PARTY’S REQUEST

Murray requests the Court dismiss Plaintiff’s complaint, or, in the alternative, continue trial to September 1, 2023.

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

Murray served discovery on Plaintiff in 2021; following withdraw of Plaintiff’s counsel in 2021, Murray attempted to meet and confer with Plaintiff to obtain overdue discovery. Plaintiff did not respond to the meet and confer efforts. Murray then filed motions to compel discovery which the Court granted on July 12, 2022. Plaintiff’s responses were due on August 1, 2022. Plaintiff has still yet to comply with the Court order and serve long overdue discovery responses.

The Court finds there is good cause to grant terminating sanctions. Plaintiff has continuously failed to meet and confer or respond to discovery requests, despite Court orders to do so. There is no indication that less severe sanctions would produce compliance or that Plaintiff is even actively prosecuting this case. As such, the Court grants the motion and dismisses Murray.

As Murray has been dismissed, Murray’s motion to continue trial is moot.

CONCLUSION

Defendant Murray Plumbing and Heating Corporation’s Motion for Terminating Sanctions is GRANTED. Murray is dismissed, with prejudice.

Defendant Murray Plumbing and Heating Corporation’s Motion to Continue Trial is MOOT.

Defendant is ordered to give notice of this ruling.