Judge: Joseph Lipner, Case: 21STCV12493, Date: 2023-09-07 Tentative Ruling

Case Number: 21STCV12493    Hearing Date: December 5, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Coast National Insurance Company (“Defendant”) moves for an order for terminating sanctions against Plaintiffs Melita Suazo and Pearl Campos (collectively, “Plaintiffs”).

The Court DENIES Defendants’ motion at the present time.   However, the Court continues this hearing to February 15, 2024 at 8:30 a.m.  The Court orders Plaintiffs to appear at the hearing either personally or through LA CourtConnect.

The Court admonishes Plaintiffs to comply with all outstanding Court orders, including the orders to appear for deposition.  Defendant cannot prepare for trial if Plaintiffs do not sit for deposition.   If Plaintiffs fail to appear for deposition and comply with other Court orders by February 15, 2024, the Court may issue terminating sanctions.

Defendant shall give notice. 

Background

Plaintiffs filed this action on April 1, 2021, stating claims for (1) personal injury and property damages, (2) reformation or revision of a written instrument; (3) specific performance of a written instrument; (4) breach of contract; (5) breach of implied covenant of good faith and fair dealing; and (6) negligent performance of a contract.

This action arises out of a vehicular collision where Suazo was operating the vehicle of Campos, the latter of whom was the named insured on a policy with Coast National. Plaintiffs allege that the subject insurance contract fails to reflect the true intent of the parties and should instead provide uninsured motorist coverage for bodily injuries.

Plaintiffs Suazo and Campos were both served with notices of depositions on March 2, 2023, with the depositions to take place on March 21, 2023. Both parties met and conferred, resulting in Coast National serving Suazo and Campos on March 17, 2023 with amended notices of deposition for April 20 and 21, 2023 respectively.

Plaintiffs did not appear for their depositions. Defendant filed a motion to compel, which the Court granted on September 7, 2023. Plaintiffs were ordered to appear for their depositions and to pay monetary sanctions within 20 days of the hearing. Plaintiffs have not paid the ordered monetary sanctions.

On September 11, Plaintiffs were served with second amended notices of deposition for September 27, 2023. Counsel for Coast National included a letter alongside the notices indicating that Plaintiffs could provide any earlier dates upon which Plaintiffs would be available if the noticed date did not work. Plaintiffs never provided alternate dates.

Neither Plaintiff appeared for their deposition on September 27, 2023, and certificates of non-appearance were taken.

Coast National filed this motion on October 10, 2023. No opposition was filed.

Legal Standard

Where a party misuses the discovery process, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc. §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., §§ 2023.010(d), (g).)     

Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Further, preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) 

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. Id. at 788.) 

Discussion

As discussed above, terminating sanctions are an exceptional and severe remedy intended to punish the most egregious conduct. Here, each Plaintiff has only violated one discovery order. This behavior, while clearly abuse of the discovery process, standing alone is not yet grounds for terminating sanctions.  Case law such as Van Sickle appears to contemplate a steady increase in pressure on a party to comply.

But Defendants cannot prepare for trial, which is rapidly approaching, unless Plaintiffs comply with the Court orders, including the one that requires them to sit for deposition.  Instead of issuing sanctions, the Court admonishes the Plaintiffs to comply with prior orders.

The Court continues this matter to February 15, 2024 at 8:30 a.m.  Failure to comply with prior court orders by that time may lead to the imposition of terminating sanctions. 

The Court orders both Plaintiffs to appear at the February 15, 2024 hearing either in person or by LA CourtConnect. 

The Court denies Coast National’s request for terminating sanctions. The Court, however, continues this matter to February 15, 2023 at 8:30 a.m.