Judge Holly J. Fujie, Case Number: 22STCV18964, Date: 2024-11-18 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

This is an action arising from a lease and option to purchase agreement between Defendant and Plaintiffs Richard and Paige Galvan (jointly, “Plaintiffs”). On June 9, 2022, Plaintiffs filed a complaint against Defendant, alleging causes of action for (1) Violation of California Civil Code § 1942.4; (2) Tortious Breach of the Warranty of Habitability; (3) Private Nuisance; (4) Business and Professions Code § 17200, et seq; (5) Negligence; (6) Breach of Covenant of quiet Enjoyment; (7) Intentional Infliction of Emotional Distress; (8) Fraud and Deceit; (9) Negligence Per Se; and (10) Violation of Retaliatory Eviction and Anti-Harassment Ordinance.

On October 23, 2023, Defendant filed a cross-complaint against Plaintiffs alleging causes of action for (1) Breach of Written Agreement; (2) Negligent Destruction of Property; and (3) Intentional Destruction of Property.

On or about August 5, 2024, Defendant filed motions for terminating sanctions against each of the two plaintiffs, with requests for monetary sanctions, and a motion to continue trial. All the motions are unopposed.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc. §§ 2023.010(g); 2030.290(c); 2031.300(c). 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.

“Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative.” (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331. See also Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80 [“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.”]; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496 [“The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply ... and (2) the failure must be willful.”].) “Discovery sanctions ‘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.” (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545) “A discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable.” (Rail Services, supra, 110 Cal.App.4th at 332.)

Here, Defendant had previously made motions to compel Plaintiffs’ deposition in this matter. On April 2, 2024, the Court granted Defendant’s motions to compel Plaintiffs’ depositions| and imposed sanctions against both Plaintiffs and their counsel. (Declaration of Marshall C. Sanders [“Sanders Decl.”].) The sanctions have yet to be paid as of the date of filing the present motions. (Id.) After the April 2, 2024 Order, and on May 7, 2024, Defendant’s counsel sent an e-mail to Plaintiffs’ counsel requesting dates for his client to be deposed, but he did not receive any response. (Id.) On June 27, 2024, Defendant’s counsel sent a Notice of Deposition to Plaintiffs’ counsel setting the deposition. (Id.) No objections were made in accordance with Code of Civil Procedure §2025.410 but rather an untimely request from Plaintiffs’ counsel that the deposition be done virtually, a condition to which Defendant’s counsel did not agree. (Id.) On July 18, 2024, the date of the duly noticed deposition, again, Plaintiffs did not appear. (Id.)

Accordingly, there is sufficient evidence before the Court to establish Defendant’s willful failure to comply with the Court’s April 2, 2024 Order as well as its obligations under the Discovery Act. (Code Civ. Proc. § 2023.010 [“Misuses 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.”].)

Plaintiffs failed to oppose the instant motions for terminating sanctions and has “show[n] no interest in taking part in the case or in following orders of the court.” (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799–800.) Imposition of a lesser sanction against Plaintiffs would permit them to “benefit from their stalling tactics.” (Liberty Mut. Fire Ins. Co. v. LcL Adm'rs, Inc. (2008) 163 Cal.App.4th 1093, 1106 [“LcL persisted in its pattern of failure or refusal to give meaningful responses to discovery. The trial court was not required to allow LcL to continue its stalling tactics indefinitely.”].) The Court thus finds that terminating sanctions are warranted under the circumstances. The Court, however, shall not impose additional monetary sanctions considering the imposition of terminating sanctions.

Accordingly, Defendant’s Motions for Terminating Sanctions against Plaintiffs are GRANTED in part, and the matter is terminated. Defendant is to prepare a form of Proposed Judgment and lodge and serve the same within twenty (20) days of the date of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court