Judge: Daniel S. Murphy, Case: 21STCV13893, Date: 2023-11-15 Tentative Ruling

Case Number: 21STCV13893    Hearing Date: February 9, 2024    Dept: 32

BACKGROUND

            On April 12, 2021, Plaintiff filed this employment discrimination action against Defendants J&A Mercado’s Plumbing & Rooter, Juan Mercado, and Adriana Mercado.

            On October 16, 2023, Plaintiff filed a motion to compel the deposition of Defendant Juan Mercado. Defendant did not file an opposition. The Court granted the motion on November 15, 2023, ordering Defendant to appear for deposition by December 22, 2023 and imposing monetary sanctions. Defendant has not appeared for his deposition and has not paid the sanctions.

            On January 10, 2024, Plaintiff filed the instant motion for terminating sanctions against Defendant J&A Mercado’s Plumbing & Rooter and Defendant Juan Mercado, who is doing business as J&A Mercado’s Plumbing & Rooter. Defendants have not filed an opposition.

LEGAL STANDARD

 The Court may impose monetary or nonmonetary sanctions against a party engaging in misuse of the discovery process. (Code Civ. Proc., § 2023.030.) Misuse of the discovery process is defined as, among other things, failing to respond to an authorized method of discovery, making an evasive response to discovery, or disobeying a court order for discovery. (Id., § 2023.010.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The penalty 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.” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 959.) Generally, two facts are prerequisite to the imposition of nonmonetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

DISCUSSION

            Defendant Juan Mercado has failed to appear for deposition despite a court order and the imposition of monetary sanctions. (See Berkowitz Decl. ¶¶ 20-21.) This demonstrates that lesser sanctions are inadequate to compel Defendant to comply with his discovery obligations. Defendant appears to have no intention of complying because he has hung up multiple times when Plaintiff’s counsel called him to confer about the deposition. (See Nov. 15, 2023 Order re MTC Depo. 2:24-25.) Therefore, Defendant’s failure to comply with the Court’s November 15 order is likely intentional. Under these circumstances, terminating sanctions are warranted.  

CONCLUSION

            Plaintiff’s motion for terminating sanctions is GRANTED as to Defendants J&A Mercado’s Plumbing & Rooter and Juan Mercado.