Judge Daniel M. Crowley, Case 21SMCV01610 2023-03-30 Tentative Ruling

Judge: Daniel M. Crowley, Case: 21SMCV01610, Date: 2023-03-30 Tentative Ruling

Case Number: 21SMCV01610 Hearing Date: March 30, 2023 Dept: 207

Background

This action arises out of a residential tenancy pursuant to a written lease for premises located at 855 N. Croft Avenue, Apt 303, Los Angeles California 90069. Plaintiff NuNu LLC (“Plaintiff”) is the landlord and rented the subject premises to Defendant Jonathan Khalifa (“Defendant”) and Defendant Jacquaz Khalifa. Plaintiff alleges Defendant failed to pay all owed rent during April 1, 2020, to September 2021. On October 6, 2021, Plaintiff filed its operative First Amended Complaint asserting a sole cause of action for breach of contract. Plaintiff previously moved the Court to compel Defendant’s deposition. The Court granted Plaintiff’s motion on February 10, 2023, and ordered Defendant to appear for deposition with 20 days of the Court’s order. Plaintiff now moves for terminating and monetary sanctions, arguing Defendant has failed to comply with the Court’s prior order.

Plaintiff’s motion for terminating sanctions is unopposed.

Legal Standard

Code Civ. Proc. § 2025.460(h) provides that if a party deponent fails to obey an order compelling attendance and testimony for deposition:

[T]he court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.

(C.C.P. § 2025.450(h).)

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (C.C.P. § 2025.450(b)(2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (C.C.P. § 2025.450(g)(1).)

Code of Civil Procedure section 2023.030 similarly provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . ., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .” Section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . (g) Disobeying a court order to provide discovery . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[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.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Ibid. (citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 (disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

Analysis

On February 10, 2023, the Court ordered Defendant to appear for deposition within 20 days, or by March 2, 2023. That same day, Plaintiff sent correspondence to Defendant attempting to schedule his deposition as required by the Court’s order. (Ex. B to Forberg Decl.) Defendant never responded to this attempt at scheduling his deposition, and to date his deposition has not been taken. (Forberg Decl. at ¶4.) Defendant’s refusal to participate in the discovery process has necessarily prejudiced Plaintiff’s ability to prepare for trial in this action. Trial in this action is set to begin on April 17, 2023, and is thus less than three weeks away. Plaintiff thus has no ability to pursue other forms of discovery and as a result Defendant’s refusal to sit for deposition improperly subjects Plaintiff to trial by surprise without notice of the claims, defenses, or evidence Defendant intends to put on.

The Court also notes Defendant has failed to contest or in any way respond to Plaintiff’s prior motion to compel his deposition or the instant motion for terminating sanctions. Defendant has thus provided the Court with no basis to find that Defendant has acted with substantial justification in failing to appear for his deposition or comply with the Court’s February 10, 2023, order. The Court thus finds Defendant has made a willful choice to completely disregard his discovery obligations in this action. While terminating sanctions are a drastic remedy which should be only used sparingly, the Court finds they are justified here given Defendant has made no effort to schedule or sit for his deposition and has flatly ignored this Court’s prior order without any attempt made to comply. On such facts, the Court any lesser sanction would be insufficient to remedy the prejudice suffered by Plaintiff or motivate Defendant to appear for deposition. That Defendant does not oppose this motion further indicates he has conceded terminating sanctions are proper and has no objection to the Court’s striking of his Answer.

The Court thus GRANTS Plaintiff’s motion for terminating sanctions against Defendant, and hereby strikes Defendant’s answer.

Plaintiff also seeks monetary sanctions of $2,017.50 calculated at 2.5 hours of attorney time at $435.00 per hour to prepare the motion, an expected 1 hour to draft a reply, an additional 1 hour to appear at the hearing on this motion, and the $60.00 filing fee incurred in bringing this motion. (Forberg Decl. at ¶5.) The Court notes Plaintiff’s motion is unopposed and as a result no reply was prepared or filed by Plaintiff. Given the relatively simple and straightforward nature of Plaintiff’s motion, and the lack of any reply briefing, the Court finds $750 to be a reasonable sanction. Such monetary sanctions are authorized by Code Civ. Proc. § 2023.030(a) and are GRANTED in that amount.

Conclusion

Plaintiff’s motion for terminating sanctions is GRANTED and Defendant’s Answer is deemed stricken. Plaintiff is awarded $750 in monetary sanctions against Defendant to be paid to counsel for Plaintiff within 20 days of the date of this order.

The Court sets a hearing on an Order to Show Cause why Plaintiff’s complaint against Jonathan Khalifa should not be dismissed for Plaintiff's failure to enter a default judgment against Jonathan Khalifa on May 30, 2023, at 8:30 a.m. in Dept. 207.