Judge: Daniel M. Crowley, Case: 21STCV16845, Date: 2022-09-08 Tentative Ruling

Case Number: 21STCV16845    Hearing Date: September 8, 2022    Dept: 28

Defendants Daniel Fabian and Todd Joseph Fabian’s Motion for Terminating Sanctions

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

BACKGROUND

On May 5, 2021, Plaintiff Christine Santoyo (“Plaintiff”) filed this action against Defendants Daniel Fabian (“Daniel”) and Todd Joseph Fabian (“Todd”) for negligence. On July 16, 2021, Defendants filed their answer. 

On June 27, 2022, Defendants filed a Motion for Terminating Sanctions to be heard on August 8, 2022.

Trial is currently scheduled for November 2, 2022.  

PARTY’S REQUEST

Defendant requests the Court dismiss Plaintiff’ complaint.

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

After multiple failures to appear at properly noticed depositions, Plaintiff failed to appear for the deposition ordered by the Court on June 3, 2022. Defendants were unable to reach Plaintiff at the number on record but left messages advising her of the Court’s order and their willingness to reschedule should the provided date not work. Given that Plaintiff has routinely failed to appear for properly noticed depositions and less severe sanctions have not resulted in compliance with the discovery rules, the Court grants the motion.

CONCLUSION

Defendants Daniel Fabian and Todd Joseph Fabian’s Motion for Terminating Sanctions is DENIED.

Defendant is ordered to give notice of this ruling.