Judge: Daniel M. Crowley, Case: 21STCV33517, Date: 2023-02-24 Tentative Ruling

Case Number: 21STCV33517    Hearing Date: February 24, 2023    Dept: 28

Plaintiffs Avraham Phil and Anat Phil-Golan’s Motion for Terminating Sanctions

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

BACKGROUND

On September 10, 2021, Plaintiffs Avraham Phil (“Phil”) and Anat Phil-Golan (“Phil-Golan”) filed this action against Defendants Hertz Vehicles LLC (“Hertz”) and Weonkyou Moon (“Moon”) for motor vehicle negligence, general negligence and negligence per se.

On October 4, 2021, Hertz filed an answer. On October 21, 2021, Hertz filed an amended answer. On January 18, 2022, Moon filed an answer.

On January 24, 2023, Plaintiffs filed a Motion for Terminating Sanctions to be heard on February 24, 2023. On February 17, 2023, Defendants filed an opposition.

The trial date currently set for May 9, 2023.

PARTY’S REQUEST

Plaintiffs request the Court issue terminating sanctions against Moon and impose sanctions totaling $3,124.40 on Plaintiff.

Defendants request the Court deny the motion.

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

Plaintiffs request the Court grant terminating sanctions against Moon for failing to appear for his December 8, 2022, deposition. Additionally, Plaintiffs note that Moon has yet to provide discovery responses; discovery was served over a year ago.

First, the Court notes that terminating sanctions are premature as Plaintiffs have not filed any motions to compel discovery. Terminating sanctions should only be employed when there is evidence that less severe sanctions would not product compliance with discovery rules—Plaintiffs have not attempted to obtain less severe sanctions and Court orders.

Additionally, the Court also notes that Moon was never located by any party at any time during this litigation. Plaintiffs served Moon via Hertz under Civil Code §1939.33; Hertz filed an answer on Moon’s behalf. Plaintiffs were aware at the time of service that Moon was unlocatable, as Plaintiffs were unable to locate Moon. The Court has recently granted leave for Intervenor Ace American Insurance Company to intervene on Moon’s behalf, which should presumably result in discovery responses.

The Court will not award sanctions at this time as this motion is premature; should Plaintiffs wish to compel discovery or depositions, Plaintiffs need to file the appropriate motions to compel said responses.

CONCLUSION

Plaintiffs Avraham Phil and Anat Phil-Golan’s Motion for Terminating Sanctions is DENIED.

Plaintiffs Avraham Phil and Anat Phil-Golan’s Request for Sanctions is DENIED.

Defendant is ordered to give notice of this ruling.