Judge: Deirdre Hill, Case: 21STCV04426, Date: 2022-10-28 Tentative Ruling

Case Number: 21STCV04426    Hearing Date: October 28, 2022    Dept: M

Hearing Date:                          October 28, 2022

Moving Parties:                      Defendant SVI Airport LLC

Responding Party:                  Plaintiff Gurmaij Sall

Motion for Terminating Sanctions

            The court considered the moving, opposition, and reply papers.  The hearing was continued from October 14, 2022 to allow counsel to meet and confer as to a stipulation re plaintiff’s deposition and testimony at trial and for plaintiff’s counsel to provide a declaration from plaintiff’s physician as to her inability to appear at a deposition.  Neither party has submitted any additional documents for the court’s consideration or status update as to the meet and confer and stipulation.

RULING

            The motion is CONTINUED to Dec. 08, 2022, at 8:30 a.m.  Moving party’s counsel is ordered to file a status update and/or stipulation within five days of hearing.

BACKGROUND

On February 4, 2021, plaintiff Gurmaij Sall filed a complaint against Homewood Suites by Hilton Los Angeles International Airport, Koar Airport Associates, LLC, Hilton Worldwide, Inc., Joyner Zecena, and Eguardo Aguayo for negligence and premises liability.  Plaintiff alleges that on February 7, 2019, plaintiff was lawfully on the premises of defendants’ hotel as a guest.  Plaintiff was using the restroom of her hotel room and as she attempted to get up from a seated position on the toilet she slipped and fell.  Plaintiff was unable to stop and/or prevent her fall as said premises did not have handlebars, handrails and/or grab bars near the vicinity of the toilet.  Plaintiff fell violently to the floor, causing her to sustain serious injuries and damages.

On February 10, 2022, the case was transferred from the PI Hub to Dept. M.

On March 1, 2022, the court denied without prejudice plaintiff’s motion for trial preference.

On August 25, 2022, the court granted defendants Koar Airport Associates, Park Hotels & Resorts Inc. f/k/a Hilton Worldwide, Inc., and SVI Airport LLC’s motion to compel plaintiff’s deposition, noting that Koar and Hilton Worldwide were dismissed on August 22, 2022.  There was no opposition filed by plaintiff or an appearance at the hearing.

Trial is set for August 30, 2023.

LEGAL AUTHORITY

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions.  CCP § 2025.450(h) (depositions); § 2030.290(c) (interrogatories); § 2031.300(c) (demands for production of documents).  CCP § 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . .  [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .”  CCP § 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .” 

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances:  [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’”  Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246).  “Generally, ‘[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.’”  Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”  Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

DISCUSSION

Defendant SVI Airport LLC requests an order imposing terminating sanctions against plaintiff.

On August 25, 2022, the court granted defendant’s motion to compel plaintiff to appear for deposition.  Plaintiff did not oppose the motion or appear at the hearing.  The court ordered that plaintiff appear for deposition on September 1, 2022 at 10:00 a.m. virtually unless a different date/time is agreed to in writing.

Defendant asserts that plaintiff failed to appear for her deposition on September 1 as ordered by the court.

In opposition, plaintiff argues that terminating sanctions are not warranted as she has not willfully disobeyed the court order.  Rather, she asserts, she is extremely ill and that she has been determined by her physician to be physically unfit to testify and that even if she could appear for a deposition, she no longer has the ability to speak.  She is an elderly woman born in 1933 and is in poor health.  Plaintiff also contends that after the court order, the parties reached a stipulation that plaintiff would not testify at trial and that defendant would not require plaintiff’s deposition.  Plaintiff argues that the “stipulation” is a binding contract.  Plaintiff requests monetary sanctions.  See John Rofeal decl.

            In reply, defendant contends that plaintiff ignored the court order and that the parties did not enter into a stipulation.  Although defense counsel sent a draft of a stipulation to plaintiff’s counsel, none was signed by either counsel or party.  Defendant points out that plaintiff has not presented any signed stipulation or offered any declaration from a qualified medical professional establishing any facts regarding plaintiff’s alleged current health condition.  See also evidentiary objections to John Rofael decl.  The court OVERRULES the objection as to para. 3 and SUSTAINS objections to paras. 5 and 7.  Defendant also argues that plaintiff’s request for sanctions is improper and baseless.

The motion is CONTINUED to allow counsel to meet and confer as to a stipulation and for plaintiff’s counsel to provide a declaration from plaintiff’s physician.

Moving defendant is ordered to give notice of the ruling.