Department 30, Spring Street Courthouse

December 9, 2022 

20STCV33540

Motion for Terminating Sanctions filed by Defendants The Buffalo Club and Brayner Alberto Ferry

The motion is granted.

The case is dismissed with prejudice.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order. 

On September 02, 2020, Plaintiff Kyle Fragnoli filed his complaint against The Buffalo Club and Brayner Alberto Ferry alleging causes of action for assault, battery, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, and premises liability.

On July 28, 2022, the Court granted Defendants’ motion to compel Plaintiff’s deposition.

On September 8, 2022, the Court granted Plaintiff’s former counsel’s motion to be relieved as counsel.

On October 11, 2022, Defendants filed the instant motion for terminating sanctions.

Moving Arguments

Defendants seek terminating sanctions against Plaintiff on the grounds that Plaintiff failed to comply with the Court’s July 28, 2022 order compelling Plaintiff to appear for deposition.  

Opposing Arguments

None.

If a party engages in the misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., § 2023.030.) Code of Civil Procedure section 2023.010 provides, in relevant part, that “[m]isuses 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.” (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].) 

Defendants argue that the Court may impose terminating sanctions against Plaintiff because he refused to comply with the Court’s July 28, 2022 order to appear for his deposition and failed to pay sanctions. 

The Court may grant Defendants’ motion for terminating sanctions because Plaintiff’s failure to obey the Court’s July 28, 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. According to the July 28, 2022 minute order, Defendants noticed Plaintiff’s deposition in March 2022 and Plaintiff failed to appear. Thereafter, Defendants met and conferred with Plaintiff’s former counsel and discovered that Plaintiff’s former counsel was unable to contact Plaintiff. After the Court granted Defendants’ motion to compel Plaintiff’s presence at deposition, Defendants noticed Plaintiff’s deposition to take place in August 2022. (Milligan Decl., ¶4.) Plaintiff failed to appear. (Id.) Plaintiff’s counsel was then relieved as counsel in October 2022. 

Plaintiff never responded to Defendants’ discovery requests or paid sanctions despite the Court’s July 28, 2022 order. Plaintiff has now delayed his deposition for nine months without any communication with Defendants. Plaintiff has not opposed this motion, Defendants’ motion to compel, or his former counsel’s motion to be relieved as counsel. Plaintiff appears to have no interest in further litigating this matter. Therefore, the Court finds terminating sanctions proper. 

Defendants’ motion for terminating sanctions against Plaintiff is GRANTED.

Moving party to give notice.