Department 30, Spring Street Courthouse

January 13, 2023

20STCV45231

Motion for Terminating Sanctions filed by Defendant Pick-Your-Part Auto Wrecking

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.

This is an action for negligence and premises liability arising from an incident where an unknown object fell on Plaintiff while he was on Defendant’s premises. Plaintiff Juan A. Urias filed his Complaint against Defendant LKQ Corporation on November 25, 2020.

Pick-Your-Part Auto Wrecking was named as a defendant in this action on April 29, 2021.

On October 7, the Court granted Defendant Pick-Your-Part Auto Wrecking’s motion to compel the Plaintiff’s deposition.

On December 8, 2022, Defendant Pick-Your-Part Auto Wrecking filed the instant motion for terminating sanctions.

Moving Arguments

Defendant Pick-Your-Part Auto Wrecking (“Moving Defendant”) argues that terminating sanctions are appropriate because Plaintiff failed to obey the Court’s October 7, 2022 order compelling Plaintiff to appear for deposition.

Opposing Arguments

None.

“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].) 

Moving Defendant argues that the Court may grant terminating sanctions because Plaintiff failed to obey the Court’s order compelling his appearance at deposition.

The Court may grant Moving Defendant’s motion to dismiss because Plaintiff’s failure to obey the Court’s October 7, 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 October 7, 2022 minute order, Plaintiff’s deposition was originally scheduled for December 1, 2021. The deposition was rescheduled twice because Plaintiff could not leave work and because Plaintiff’s counsel had an emergency related to COVID-19. After Plaintiff’s counsel’s motion to be relieved as counsel was granted, Moving Defendant’s counsel noticed Plaintiff’s deposition for June 1, 2022. Plaintiff failed to appear at his June 1, 2022 deposition. 

After the Court granted Moving Defendant’s motion to compel, Moving Defendant’s counsel served the notice of ruling on Plaintiff and mailed a letter to him advising that he had been ordered to attend his deposition on October 26, 2022. (Chrun Decl., ¶¶8-9.) Moving Defendant also served a Third Amended Notice of Deposition and Request for Documents for the October 26, 2022 deposition. (Id., ¶10.) Plaintiff failed to appear on October 26, 2022 and Moving Defendant took a certificate of non-appearance. (Id., ¶11; Exh. E.)

Plaintiff did not appear for the October 7, 2022 hearing and did not oppose the instant motion. Plaintiff has not opposed this motion. Plaintiff has now delayed his deposition by more than one year. It appears Plaintiff is no longer interested in litigating this matter.

Plaintiff has never appeared for his deposition despite the October 7, 2022 order. His failure to appear is preceded by a history of abuse and there is no evidence that a lesser sanction would bring about compliance given that Plaintiff is ignoring the case entirely. Therefore, the Court finds terminating sanctions proper.