Judge: Daniel M. Crowley, Case: 20STCV28237, Date: 2022-08-16 Tentative Ruling

Case Number: 20STCV28237    Hearing Date: August 16, 2022    Dept: 28

Defendant Antonio Regla dba Antonio’s Trucking’s Motion for Terminating Sanctions

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

BACKGROUND

On July 27, 2020, Plaintiff Duran Bowie (“Plaintiff”) filed this action against Defendants Antonio Regla (“Regla”) and Antonio’s Trucking, Inc. (“Trucking”) for motor vehicle negligence and general negligence.

On April 20, 2021, Defendant Antonio Regla dba Antonio’s Trucking (“Defendant”) filed an answer on behalf of both named Defendants.

On May 17, 2022, Defendant filed a Motion for Terminating Sanctions to be heard on June 16, 2022. On the Court’s motion, the hearing was continued to August 16, 2022. On June 10, 2022, Plaintiff filed an opposition. On June 23, 2022,

The trial date currently set for April 14, 2023.

PARTY’S REQUEST

Defendant requests the Court impose terminating sanctions and $1,910.00 in monetary sanctions on Plaintiff.

Plaintiff requests the Court deny the motion and also vacate the underlying order.

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

Terminating Sanctions

Defendant originally scheduled an IME of Plaintiff with Dr. Shamie on February 2, 2022. Dr. Shamie informed Defendant that at the IME, Plaintiff was loud and disruptive and demanded he be allowed to videotape the examination. Plaintiff ended up leaving before the IME was finished. Dr. Shamie informed Defendant’s counsel he was unwilling to conduct the IME because of Plaintiff’s behavior.

On March 14, 2022, the Court ordered Plaintiff to appear for an IME with Dr. Kureshi on May 6, 2022. Defendant alleges that Plaintiff refused to appear for this IME. Plaintiff argued that the IME was too far from his home, despite the fact it was ordered by the Court and within the 75 mile statutory limit.

Plaintiff argues that he failed to appear for his examination as he was experiencing COVID-19 symptoms and is unable to drive 72 miles from his home as his back injury prevents him from being in a seated position for long periods. Additionally, Plaintiff argued that Plaintiff should not have been forced to submit to another examiner by simply attempting to utilize his right to record, citing his misunderstanding of the CCP as an explanation.

The Court is unconvinced by this argument. Even if Plaintiff is representing himself in pro per, Plaintiff has an obligation to abide by the CCP and CRC as would any attorney representing a client. Plaintiff also has an obligation to appear for a duly noticed IME, especially after it has been ordered by the Court. Plaintiff cannot simply refuse to attend a Court ordered IME—he must take proper steps in order to seek relief. The Court also notes that issues such as child-care do not protect Plaintiff from having to appear for duly noticed IMEs. Like all other litigants, Plaintiff, and only Plaintiff, is responsible for ensuring he is able to engage in the litigation process.

The Court will not rule on any issues regarding the initial order in this motion, as it is irrelevant. Regardless, the Court does not find grounds for terminating sanctions here, based on the totality of circumstances. It does not appear that this is an ongoing pattern of abuse nor that no other sanctions would result in Plaintiff’s compliance. The Court denies the request for terminating sanctions, but will grant the request for monetary sanctions, as Plaintiff has engaged in misuse of the discovery process. However, if this continues to be an issue, the Court may find there are grounds to issue terminating sanctions.

Monetary Sanctions

Defendant requests sanctions totaling $1,910.00 based upon 5 hours of attorney’s work, at a rate of $200.00 per hour, one $850.00 late cancellation fee for the unattended IME, and one $60.00 filling fee. Attorney’s work is based on 3 hours preparing the motion, 1 hour preparing the reply, and 1 hour attending the motion. The Court finds the requested sanctions reasonable and grants them in full.

CONCLUSION

Defendant Antonio Regla dba Antonio’s Trucking’s Motion for Terminating Sanctions is DENIED. Defendant Antonio Regla dba Antonio’s Trucking’s Request for Sanctions is GRANTED. Plaintiff is ordered to pay sanctions totaling $1,910.00 to Defendant within 30 days of the hearing on the motion.

Defendant is ordered to give notice of this ruling.