Judge: Elaine W. Mandel, Case: 21SMCV00399, Date: 2023-03-10 Tentative Ruling

Case Number: 21SMCV00399    Hearing Date: March 10, 2023    Dept: P

Tentative Ruling

Albinali v. Calvert et al., Case No. 21SMCV00399

Hearing Date March 10, 2023

Defendant Calvert’s Motion for Order Dismissing Action and Imposing Monetary Sanctions

On December 15, 2022 the court ordered Albinali to appeared for deposition by December 23, 2022 and pay $7,000 in sanctions. The order stated the court would consider terminating sanctions if Albinali failed to comply. Albinali has not been deposed or paid the sanctions, and defendant filed the instant motion. On February 28, 2023 the court issued a tentative ruling granting the motion. At plaintiff’s request, the court continued the hearing to review Alibnali’s untimely opposition and declaration.

A court may order sanctions, up to and including terminating sanctions, for disobeying a court discovery order. Cal. Code of Civ. Proc. §§ 2023.010, 2023.030. Terminating sanctions are meant to be remedial, not punitive, and should generally not be imposed unless lesser sanctions fail to induce compliance from the offending party. Lopez v. Watchtower Bible & Tract. Soc. Of New York, Inc. (2015) 246 Cal.App.4th 566, 604.

On November 7, 2022 the court granted Calvert’s motion to compel plaintiff’s deposition within 20 days. Nov. 7 minute order. Plaintiff did not agree on a deposition date. Calvert moved ex parte for terminating sanctions, resulting in the December 15, 2022 order detailed above. Albinali has not complied. Calvert argues this record shows lesser sanctions have been insufficient to induce Albinali to comply with her deposition obligations.

In opposition, Albinali states she was unable to complete her deposition by December 23, 2022 due to various unforeseen events throughout 2022, including a car accident and the deaths of her aunt, mother and brother. Albinali declaration ¶¶3-4. She states she is available for deposition March 14-21. Id. ¶9. This suggests Albinali’s failure to appear was not willful. Additionally, there is a strong public policy preference in favor of deciding matters on the merits.

The motion is CONTINUED to March 30, 2023 to confirm plaintiff’s deposition has been completed and the sanctions paid. If not, the court will grant the order.