Judge Jill Feeney, Case 19STCV41785 2023-01-13 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This is an action for professional negligence and loss of consortium arising from a medical procedure performed by Defendant Park in November 2018. Plaintiffs Hae Hyun Park and Danny Yoonshik Park filed their Complaint on November 20, 2019.

If a party or party-affiliated deponent fails to obey an order compelling attendance, testimony, and production, a court may impose issue, evidence, or terminating sanctions against the party who failed to appear. (Code Civ. Proc., section 2025.450(h).) A court may impose monetary sanctions in lieu of or in addition to non-monetary sanctions in favor of any party who attended the deposition in expectation that the deponent’s testimony would be taken pursuant to that order. (Id.)

“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.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendant’s Answer and subsequently granting default judgment) 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 the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

The Court may grant Plaintiffs’ motion for terminating sanctions because Han’s failure to obey the Court’s October 17, 2022 order is preceded by a history of abuse and the evidence shows that less severe sanctions would not produce compliance with the discovery rules. Plaintiffs’ counsel testifies that he originally set Han’s deposition for September 21, 2022. (Waecker Decl., ¶3.) Han failed to appear for the deposition. (Id., ¶4.) Counsel made significant attempts to contact Han without success until October 26, 2022, when Han emailed counsel informing him that he was available for deposition on that day. (Id., ¶5.) After the Court granted Plaintiffs’ ex parte motion to compel Han to appear for deposition, Plaintiffs sent Han a letter on October 25, 2022 reminding him of the Court ordered deposition. (Id., ¶7.) Han failed to appear on October 26, 2022. (Id., ¶8.) Counsel sent another letter to Han asking him to contact counsel immediately to reschedule the deposition. (Id., ¶9.) Han did not respond. (Id., ¶10.)

Although he submitted an opposition, Han did not appear for the October 17, 2022 hearing on Plaintiffs’ ex parte motion and did not oppose the instant motion. Plaintiff then failed to appear at his October 26, 2022 deposition. Han has now delayed his deposition by nearly five months. It appears Han is no longer interested in litigating this matter. Han failed to appear for his deposition despite a Court order compelling him to do so. His failure to appear is preceded by a history of abuse and there is no indication that a lesser sanction would achieve compliance as Han has absented himself from the litigation all together. Therefore, the Court finds terminating sanctions proper. The Court declines to award further monetary sanctions.