Judge Elaine W. Mandel, Case 21STCV08617 2022-10-06 Tentative Ruling

Judge: Elaine W. Mandel, Case: 21STCV08617, Date: 2022-10-06 Tentative Ruling

Case Number: 21STCV08617 Hearing Date: October 6, 2022 Dept: P

Tentative Ruling
Hanks v. Parker et al., Case No. 21STCV08617
Hearing date October 6, 2022
Plaintiff Hanks’ Motion for Terminating and Monetary Sanctions

Plaintiff sued defendant, his former romantic partner, for theft, conversion, assault and battery. On May 4, 2022, the Court granted plaintiff’s motions to compel defendant’s deposition; responses to Form Interrogatories, Special Interrogatories and Requests for Production of documents; and for an order deeming Requests for Admissions admitted.

Plaintiff now moves for terminating sanctions and requests sanctions of $4,560.

Plaintiff requests the Court take judicial notice of two online articles and the Case

Information Summary from the Court website. A court has discretion to take judicial notice of "facts and propositions that are not subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy". Evidence Code § 452(h) [emphasis added]. The request for judicial notice of the online articles is DENIED, as these are not sources of reasonably indisputable accuracy and are hearsay. The request for judicial notice of the court website information is GRANTED.

Objections to the declarations of Williams and Murray are OVERRULED.

Defendant argues terminating sanctions are extreme. Defendant provided discovery responses following the court’s order and attempted to schedule her deposition, as ordered. Plaintiff argues the discovery responses are insufficient, and it is defendant’s responsibility to schedule her deposition.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidentiary or monetary sanctions. Code Civ. Proc., §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1995) 75 Cal.App.4th 486, 495. “[T]erminating sanctions are to be used sparingly because of the drastic effect of their application.” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191. “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.” Id.

On May 4, 2022, the Court granted plaintiff’s motions to compel responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents and ordered defendant to serve responses without objections within twenty days. Kernan Decl., ¶¶ 10-11, Ex. D. The Court also granted plaintiff’s motion to compel defendant’s deposition and ordered the deposition to occur within forty-five days. Ibid. The Court deferred the issue of sanctions.

Defendant responded to the discovery, without objections, on May 24, 2022. Kernan Decl., ¶¶ 13-16, Exs. F, G, H. As defendant timely complied with the court order, she did not willfully disobey the order regarding the written discovery. To the extent plaintiff argues the responses are insufficient, he may schedule an IDC or motions to compel further responses.

Plaintiff argues terminating sanctions are warranted because of defendant’s failure to appear for deposition within forty-five days. Emails indicate that on June 17, 2022, defendant’s counsel sent plaintiff’s counsel an email initiating deposition scheduling and indicating availability in early August. Murray Decl., Exhibit B. At the July 11, 2022, case management conference, the parties were instructed to meet and confer to set deposition dates for both plaintiff and defendant. 7/11/22 Minute Order. Defendant’s deposition has not been conducted; defense counsel states: “[s]ince our July 11, 2022, CMC, we have not been contacted in any form or fashion by Plaintiff’s Counsel to provide deposition dates.” Murray Decl. ¶ 12.

Defense counsel initiated deposition scheduling talks in June, but apparently there have been no further discussions. Defendant was ordered to appear for deposition within 45 days of May 4, 2022; this has not occurred. There is no basis for the court to conclude this was willful, as defense counsel attempted to schedule the deposition. Plaintiff could have unilaterally noticed a deposition. It does not appear this occurred. Such is not the basis for terminating sanctions.

Defendant is to make herself available for deposition within thirty days. If defendant fails to appear, plaintiff may renew this motion. The parties are to meet and confer in advance of the hearing on this motion to select deposition dates for both plaintiff and defendant.

Plaintiff moves for monetary sanctions. Defendant does not address the sanctions request. Sanctions are not appropriate, as defendant timely provided discovery responses, without objection. Defense counsel also engaged in a discussion (though ultimately unfruitful) to schedule defendant’s deposition. This is not the willful failure to obey a court order that justifies the granting of either terminating or monetary sanctions.

In the future, if the parties have similar issues with failure to comply with court orders or other discovery issues, they are invited to contact the court to schedule an informal conference or schedule a case management conference. DENIED.