Judge Daniel M. Crowley, Case 20STCV36181 2023-02-03 Tentative Ruling

Judge: Daniel M. Crowley, Case: 20STCV36181, Date: 2023-02-03 Tentative Ruling

Case Number: 20STCV36181 Hearing Date: February 3, 2023 Dept: 28

Plaintiff Donna Everton’s Motion for Warrant of Commitment for Owner of Defendant Raymond Renaissance Surgery Center, LLC; Plaintiff Donna Everton’s Motion for Sanctions against Defendant Raymond Renaissance Surgery Center, LLC

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

BACKGROUND

On September 22, 2020, Plaintiff Donna Everton (“Plaintiff”) filed this action against Defendants Raymond Renaissance Surgery Center, LLC (“Raymond”) and Khaled Tawansy, M.D. (“Tawansy”) for negligence.

On March 24, 2021, the clerk entered default against Defendants.

On January 5, 2023, Plaintiff filed a Motion for Warrant of Commitment for Owner of Defendant Raymond Renaissance Surgery Center, LLC to be heard on February 3, 2023.

On January 5, 2023, Plaintiff filed a Motion for Sanctions against Defendant Raymond Renaissance Surgery Center, LLC to be heard on February 3, 2023.

PARTY’S REQUEST

Plaintiff requests the Court issue a bench warrant for the owner of Raymond, Khaled Tawansy, M.D.

Plaintiff also requests the Court impose sanctions totaling $1,173.26 on Raymond.

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 3.1346 states “[a] written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”

DISCUSSION

Bench Warrant

Defendants have yet to appear in this action, meaning both are technically considered non-parties. Plaintiff has failed to meet the service requirements for the subject motions. In requesting a bench warrant for “the owner of Defendant [Raymond],” Plaintiff is also requesting a bench warrant specifically for Tawansy. Even though Plaintiff has personally served Raymond, Plaintiff has not personally served Tawansy. The Court cannot order a bench warrant against an individual non-party without proper personal service on that individual.

Sanctions

On September 29, 2022, the Court ordered Raymond to comply with the deposition subpoena within 30 days of the hearing on the motion. Raymond failed to comply with the Court order. In failing to abide by the Court order, Raymond has misused the discovery process and failed to abide by a Court order. The Court imposes sanctions.

Plaintiff requests sanctions totaling $1,173.26, based on the motion for sanctions and the motion for the bench warrant. This request is based on $100.00 service fee of the September 29, 2022, order, $12.42 for filing proof of service, 2 $61.65 filling fees and 6.15 hours of attorney’s work, at a rate of $150.00 per hour. Approximately 3 hours were spent drafting the bench warrant motion, 1.5 hours drafting the motion for sanctions, with additional time spent on preparing for and attending the hearing. The Court will not award sanctions stemming from the motion for bench warrant, or for service of the previous order. The Court grants $511.65 in sanctions.

CONCLUSION

Plaintiff Donna Everton’s Motion for Warrant of Commitment for Owner of Defendant Raymond Renaissance Surgery Center, LLC is DENIED.

Plaintiff Donna Everton’s Motion for Sanctions against Defendant Raymond Renaissance Surgery Center, LLC is GRANTED. Raymond is ordered to pay Plaintiff $511.65 in sanctions within 30 days of the hearing of the motion.

Defendant is ordered to give notice of this ruling.