Judge: Elaine Lu, Case: 20STCV46165, Date: 2023-05-03 Tentative Ruling

Case Number: 20STCV46165    Hearing Date: May 3, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On December 3, 2020, Plaintiff Susanne Guzman (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Right of Way, Inc. (“Right of Way”) and Dominic John Sanchez (“Sanchez”) (jointly “Defendants”).  The complaint asserts a single cause of action for motor vehicle negligence. 

On October 26, 2022, Defendant Right of Way filed a motion to compel Plaintiff’s deposition, which the Court granted on November 30, 2022.  (Order 11/30/22.) On January 10, 2023, Defendants filed the instant motion for terminating sanctions.  No opposition or reply has been filed.

Legal Standard

Code of Civil Procedure section 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 . . . .”  Code of Civil Procedure section 2023.010 provides that “[m]issues 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, supra, 223 Cal.App.4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”  (Ibid. [citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); 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, fn.4, [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

However, “a penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”  (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707.) 

Pursuant to Code of Civil Procedure section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

Discussion

            Defendants move for terminating and monetary sanctions against Plaintiff based on Plaintiff’s refusal to comply with the Court’s November 30, 2022 Order.

Terminating Sanctions

            On August 8, 2022, Defendants served by electronic service the first amended deposition notice for Plaintiff seeking Plaintiff’s deposition on September 15, 2022.  (Hussein Decl. ¶ 21, Exh. A.)  Plaintiff did not ever serve any objection.  (Hussein Decl. ¶ 24.)  The day before the scheduled deposition, Defense Counsel contacted Plaintiff’s Counsel to confirm Plaintiff’s anticipated appearance on September 15, 2022.  (Hussein Decl. ¶ 22, Exh. B.)  In response, Plaintiff’s Counsel stated that there would be no appearance by Plaintiff.  (Hussein Decl. ¶ 22, Exh. B.)  Thus, Plaintiff’s Counsel provided less than 24-hour notice that Plaintiff would not comply with the deposition notice and only did so only upon inquiry from Defense Counsel.  Plaintiff’s Counsel did not provide any explanation and refused to provide alternative deposition dates.  (Hussein Decl. ¶¶ 22-25, Exh. B.)  Defense Counsel made requests for alternative dates, Plaintiff did not respond, and Plaintiff failed to appear at the deposition.  (Hussein Decl. ¶¶ 23-24.)  Accordingly, a notice of nonappearance was taken on September 15, 2022.  (Hussein Decl. ¶ 24, Exh. C.)  On October 6, 2022, Defendants noticed Plaintiff’s deposition for October 21, 2022.  (Hussein Decl. ¶ 26, Exh. D.)  “Once again, Plaintiff refused to appear, failed to object, and refused to provide alternative deposition dates.”  (Hussein Decl. ¶ 27, Exh. E.)

            On October 26, 2022, only Defendant Right of Way filed a motion to compel Plaintiff’s deposition.  The Court granted Defendant Right of Way’s motion on November 30, 2022.  (Order 11/30/22.)  Specifically, the Court ordered Plaintiff to appear for deposition and produce the noticed documents within thirty days of notice of the November 30, 2022 order at a date and time noticed by Defendant Right of Way and granted sanctions of $2,460.00 in favor of Defendant Right of Way.  (Order 11/30/22; Hussein Decl. ¶ 28, Exh. F.)   

On December 1, 2022, Defendants gave notice of the Court’s November 30, 2022 order and noticed Plaintiff’s deposition for December 13, 2022 pursuant to the Court’s order.  (Hussein Decl. ¶ 29, Exh. G.)  On December 2, 2022, Defendants filed proof of service of the Court’s order.  However, Plaintiff failed to appear at the noticed deposition, and Defendants took a notice of non-appearance.  (Hussein Decl. ¶ 30, Exh. H.)

            Despite being provided with notice of the November 30, 2022 Order, Plaintiff has failed to comply with the Court’s November 30, 2022 Order, and Plaintiff has again failed to appear for a deposition.  Nor has Plaintiff provided any explanation or justification for her failure to appear for deposition, even after court order.  Accordingly, the Court finds that Plaintiff has engaged in a pattern of conduct that constitutes misuse of discovery by willfully disobeying the Court’s order to appear for a deposition.  Plaintiff was served with notice of the Court’s order to appear for a deposition as well as the instant motion.  Yet, Plaintiff has failed to file any opposition to the instant motion, leading this court to conclude that Plaintiff has no meritorious arguments.  (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.)  

Based on the record before the Court, the Court finds Plaintiff had knowledge of Plaintiff’s discovery obligations (including to appear for deposition) and the Court order compelling Plaintiff’s compliance.  Plaintiff’s failure to file any opposition to the instant motion indicates to the Court that Plaintiff’s noncompliance was willful.  Although terminating sanctions are a harsh penalty, Defendant Right of Way has demonstrated that Plaintiff’s compliance with the Court’s orders cannot be achieved through lesser sanctions.  Accordingly, Defendant Right of way is entitled to a court order imposing terminating sanctions against Plaintiff. 

However, as to Defendant Sanchez there is no basis to impose terminating sanctions.  The motion to compel Plaintiff’s deposition was noticed solely and brought only on behalf of Defendant Right of Way.  (See Notice of Motion to Compel Deposition filed 10/12/22.)  Accordingly, the Court only granted Defendant Right of Way’s motion to compel Plaintiff’s deposition.  (Order 11/30/22.)  Defendant Sanchez has never brought a motion to compel Plaintiff to comply with a discovery obligation in this action.  Therefore, Plaintiff has not complied failed to comply with a discovery order as to Defendant Right of Way.  Accordingly, there is no basis for this Court to impose terminating sanctions against Plaintiff in favor of Sanchez.

Monetary Sanctions

In addition to terminating sanctions, Defendants seek monetary sanctions.  Specifically, Defendants seek a total of $2,820.00 to compensate Defense Counsel for 4.9 hours in drafting the instant motion, an anticipated 1 hours in drafting a reply, and an anticipated 1 hours in attending the hearing at $400 per hour plus filing fees of $60.  (Hussein Decl. ¶¶ 31-32.)

The Court finds that an order for additional monetary sanctions is improper as to Defendant Sanchez because Plaintiff has not defied any discovery order as to Defendant Sanchez.  As to Defendant Right of Way, the Court finds that terminating sanctions are sufficient and that additional monetary sanctions are unnecessary and would be futile in any event.  Therefore, the Court declines to award further monetary sanctions.

CONCLUSIONS AND ORDER

For the foregoing reasons, Defendants’ motion for terminating sanctions is GRANTED INSOFAR AS THE MOTION IS BROUGHT ON BEHALF OF Defendant Right of Way, Inc. Defendants’ motion for terminating sanctions IS OTHERWISE DENIED.

Defendant Right of Way, Inc. is hereby dismissed from the complaint.  Defendant Right of Way, Inc. is to file and serve a proposed judgment of dismissal within ten (10) days – no later than May 13, 2023.

Defendants’ request for monetary sanctions is DENIED.

Moving Parties are to provide notice and file proof of service of such.

DATED: May 3, 2023                                                                        ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court