Judge Jon R. Takasugi, Case 21STCV07162 2022-09-07 Tentative Ruling

Defendant’s motions for terminating sanctions are DENIED, WITHOUT PREJUDICE.

However, Plaintiff is ordered to comply with all outstanding Court orders within 10 days of entry of this order, including payment of sanctions. Moreover, Plaintiff is sanctioned $2,100.00, payable within 60 days of entry of this order.

On 2/24/2021, Plaintiff Yun Sam Chung (Plaintiff) filed suit against Ji Hyun Kang (Defendant), alleging: (1) breach of oral agreement; (2) open book account; and (3) account stated.

Now, Defendant moves for terminating sanctions in both 21STCV07162 and 21STLC01591.

Defendant argues that termination sanctions are warranted because Plaintiff has failed to engage in discovery, and has ignored multiple Court orders to comply.

CCP § 2023.030(d): (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. (3) An order dismissing the action, or any part of the action, of that party. (4) An order rendering a judgment by default against that party.

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; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1224 [terminating sanctions by trial court not an abuse of discretion where defendant repeatedly violated court orders to produce records].)

Here, the Court notes that, contrary to Defendant’s contention, in both cases on 6/22/2022, the Court denied Defendant’s motions to deem his RFAs admitted after Plaintiff filed substantially code-compliant responses prior to the hearing.[1] Thus, while Plaintiff has still failed to comply with this Court’s order on 2/28/2022 granting in part Defendant’s motion to compel initial discovery, Plaintiff has shown at least some willingness to engage in discovery and thus terminating sanctions at this stage are not yet appropriate. Rather, Plaintiff’s failure to comply with a Court order, alongside his consistently late filings and his failure to oppose this motion, constitute a serious abuse of the discovery process.

Plaintiff is ordered to comply with all outstanding Court orders within 10 days of entry of this order, including payment of sanctions. Moreover, Plaintiff is sanctioned an additional $2,100 ($350/hr x 3 hrs per motion [for a collective 6 hours]), payable within 60 days of entry of this order.

Plaintiff’s failure to comply with this Court order could result in terminating sanctions being granted. To that end, Defendant’s motion is denied without prejudice.

Based on the foregoing, Defendant’s motion for terminating sanctions is denied, without prejudice.

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

[1] To avoid any confusion, while the 6/15/2022 tentative was to grant the motion to deem RFAs admitted, the 6/22/2022 minute order indicates that the tentative was modified to deny the motion after Plaintiff filed substantially code-compliant (albeit late) responses.