Judge: Daniel M. Crowley, Case: 21STCV38095, Date: 2022-09-22 Tentative Ruling

Case Number: 21STCV38095    Hearing Date: September 22, 2022    Dept: 28

Defendant Flexeco Incorporated’s Motion for Terminating Sanctions

Having considered the moving, opposition, reply, and supplemental declaration of Brad Barhholtz, the Court rules as follows.

BACKGROUND

On October 14, 2021, Plaintiffs Martin F. O’Toole, individually and as Successor-in-Interest to The Estate of Martin P. O’Toole (“Martin”) and Mary Lou O’Toole (“Mary”) filed this action against Defendants Flexeco Incorporated (“Flexeco”) Victor Gil Neyra (“Neyra”) and Eric Friedrichsen, M.D. (“Friedrichsen”) for negligence (wrongful death) and negligent hiring, retention, supervision and training (wrongful death).  

On July 27, 2022, Flexeco filed a Motion for Terminating Sanctions to be heard on September 22, 2022. On September 9, 2022, Plaintiffs filed an opposition. On September 15, 2022, Flexeco filed a reply.

Trial is scheduled for April 13, 2023. 

PARTY’S REQUEST

Initially, Flexeco requested the court grant terminating sanctions, or, in the alternative, impose evidentiary and issue sanctions. Now, however, Flexeco acknowledges receipt of the requested discovery and sanctions.  Nonetheless, Flexeco still requests the Court order sanctions totaling $2,310.00.

Plaintiffs 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.)

DISCUSSION

The Court finds takes Plaintiffs’ counsel at his word that his situation has resolved.  In addition, a motion seeking sanctions for the failure to pay sanctions is improper.  Sanctions may be collected as a judgment.    (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610 [“The time has come to reassert a well-established but apparently not well-known rule about monetary sanctions in discovery.  The rule is that it is an abuse of discretion for a trial court to issue a terminating sanction for failure to pay the sanction.’]). Finally, Plaintiffs’ time to amend their complaint has not yet lapsed. 

CONCLUSION

Defendant Flexeco Incorporated’s Motion is DENIED.

Defendant is ordered to give notice of this ruling.