Judge: Daniel M. Crowley, Case: 21STCV03569, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV03569    Hearing Date: December 7, 2022    Dept: 28

AMENDED

Defendants Akshay Patil, Turo, Inc., Jie Liang and Dewei Zhou’s Motion for Terminating Sanctions

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

BACKGROUND

On January 29, 2021, Plaintiff Ashlie Marquise Mays (“Plaintiff”) filed this action against Defendants Akshay Patil (“Patil”), Turo, Inc. (“Turo”), Jie Liang (“Liang”) and Dewei Zhou (“Zhou”) for motor vehicle negligence, general negligence, negligence per se and negligent entrustment.

On April 20, 2021, Defendants filed an answer.

On September 19, 2022, Defendants filed a Motion for Terminating Sanctions to be heard on December 7, 2022.

The trial date currently set for April 20, 2023.

PARTY’S REQUEST

Defendant requests the Court issue terminating sanctions against Plaintiff, or, in the alternative impose sanctions totaling $1,276.00 on Plaintiff and order Plaintiff to appear for a deposition within 20 days.

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

On August 16, 2022, the Court ordered Plaintiff to appear for a deposition within 30 days of the hearing on the motion; this was after 3 previous attempts to set Plaintiff’s deposition. On August 18, 2022, Defendants served Plaintiff at his home address with a deposition notice for September 12, 2022. Defendants left several messages for Plaintiff to confirm her deposition in the days prior. Plaintiff failed to appear for the deposition.

The Court find grounds for terminating sanctions at this time. Plaintiff was served with notice and advised repeatedly of her need to attend. 

CONCLUSION

Defendants Akshay Patil, Turo, Inc., Jie Liang and Dewei Zhou’s Motion for Terminating Sanctions is GRANTED. Plaintiff's Complaint is dismissed with prejudice pursuant to Code of Civil Procedure section 2025.450(h).  No sanctions were requested in conjunction with the request to terminate, and so none are awarded.  

Defendant is ordered to give notice of this ruling.