Judge: Katherine Chilton, Case: 20STLC02507, Date: 2022-09-28 Tentative Ruling

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Case Number: 20STLC02507    Hearing Date: September 28, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR TERMINATING SANCTIONS

MOVING PARTY:   Defendant Jorge Hernandez

RESP. PARTY:         Plaintiff Nicole Jackson

MOTION FOR TERMINATING SANCTIONS

(CCP §§ 2023.010, et seq.)

TENTATIVE RULING:

Defendant Jorge Hernandez’s Motion for Terminating Sanctions is Deemed Timely and GRANTED.  The Complaint is dismissed with prejudice.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 [OK]

[X] Correct Address (CCP §§ 1013, 1013a)                                                 [OK]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     [OK]

OPPOSITION:          Filed on September 19, 2022.                           [X] Late                       [   ] None

REPLY:                     Filed on September 20, 2022.                           [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On March 16, 2020, Plaintiff Nicole Jackson (“Plaintiff”), in propria persona, filed an action against Defendant Jorge Hernandez (“Defendant”) for general and motor vehicle negligence.  The action arises out of an automobile accident that Plaintiff alleges occurred on March 16, 2018.  On April 15, 2020, Defendant filed an Answer denying all allegations in the Complaint.

On August 29, 2022, Defendant filed a Motion for Terminating Sanctions.  On September 19, 2022, Plaintiff filed an Opposition to the Motion and on September 20, 2022, Defendant filed a Reply.

II.              Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions.  (Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

Code of Civil Procedure § 2030.040 requires that “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”  Furthermore, the notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.  (Code of Civ. Proc. § 2030.040.)

Monetary sanctions may be imposed “ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct…unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code of Civ. Proc. § 2030.030(a).)

Issue sanctions may be imposed “ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.”  (Code of Civ. Proc. § 2030.030(b).)

Evidence sanctions may be imposed “by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”  (Code of Civ. Proc. § 2030.030(c).)

In more extreme cases, the Court may also impose terminating sanctions by “striking out the pleadings or parts of the pleadings,” “staying further proceedings,” “dismissing the action, or any part of the action,” or “rending a judgment by default” against the party misusing the discovery process.  (Code of Civ. Proc. § 2030.030(d).)  The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  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.)  “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”  (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.)

III.            Discussion

A.    Defendant’s Motion

Defendant moves for terminating sanctions, including dismissal of Plaintiff’s instant action in its entirety, and for an order deeming hearing date on this Motion proper.

Defendant argues that the Motion should be granted because of:

(a)   Plaintiff’s failure and/or refusal to respond or submit to the subject discovery;

(b)   Plaintiff’s failure and/or refusal to meet and confer in good faith over the subject discovery;

(c)   Plaintiff’s filing of motions and oppositions to motions in an effort to wrongly limit or otherwise prevent critical discovery on issues of liability and damage; and

(d)   Plaintiff’s decision to disobey this Court’s orders pertaining to the same.

(Mot. pp. 2-3.)  Plaintiff’s actions have “deprived Defendant of critical evidence concerning liability and damage issues needed to evaluate the claims presented and prepare for trial and has resulted in severe, undue prejudice against Defendant.”  (Ibid.)  This conduct is also a “a misuse and abuse of the discovery process, is without substantial justification, and is in direct contravention of the interests of justice.”  (Ibid.)

            Defendant outlines specific instances that demonstrate how Plaintiff’s conduct obstructed and abused discovery.  First, Plaintiff provided insufficient and evasive answers to Defendant’s Demands for Inspection and Production, Set One, and Form Interrogatories, Set One, propounded on September 30, 2021.  (Mot. p. 4; Kim Decl. ¶ 4.)  Defense counsel tried to meet and confer with Plaintiff regarding the insufficient answers, to no avail, and, thus, filed motions to compel responses to these discovery requests.  (Mot. p. 4; Kim Decl. ¶¶ 4-8.)  On February 10, 2022, and March 29, 2022, the Court granted Defendant’s Motions to Compel and requests for sanctions.  (Mot. p. 4; Kim Decl. ¶ 9, Exs. A-D; 2-10-22 Minute Order; 3-29-22 Minute Order.)  Despite the Court order, Plaintiff continued to refuse to response to said discovery requests.  (Kim Decl. ¶ 10.)  Plaintiff also filed Motions for Reconsideration of the Court’s orders, which were denied on May 26, 2022, and July 28, 2022, respectively.  (Kim Decl. ¶ 11, Exs. E-G; 5-26-22 Minute Order; 7-28-22 Minute Order.)  Nevertheless, Plaintiff has continued to refuse to provide sufficient responses to these discovery requests.  (Mot. p. 5; Kim Decl. ¶ 11.)

            Plaintiff has also refused to cooperate with Defendant’s attempts to depose her, despite defense counsel’s continuous efforts to accommodate Plaintiff.  (Mot. p. 5, Kim Decl. ¶ 12.)  On August 1, 2022, the Court granted Defendant’s Motion to Compel Plaintiff’s Attendance at the Deposition and request for sanctions.  (Kim Decl. ¶ 12, Exs. I-J; 8-1-22 Minute Order.)  Even after the Court order and defense counsel’s various attempts, Plaintiff has not responded to attempts to meet and confer and set a date for the deposition.  (Mot. p. 5; Kim Decl. ¶¶ 13-14; Ex. K.)  When Defendant set a date and provided Notice of Deposition, Plaintiff did not object.  (Mot. p. 6; Kim Decl. ¶ 14, Ex. L.)  On August 11, 2022, Plaintiff sent defense counsel a letter regarding defense counsel’s “misplaced belief that a judge’s order’s takes precedent over a statute. No, that is not correct. A judge is considered to have abused discretion when a decision is made that is not in alignment with case precedent and statutory rules.”  (Mot. p. 6; Kim Decl. ¶ 15; Ex. M.)  The day before the deposition, Plaintiff told defense counsel over the phone “that she was not required to appear on August 23, 2022 for her deposition absent any statutory requirement or specific court order for the date set…rudely shouted at Defendant’s counsel for calling and hung up.”  (Mot. p. 6; Kim Decl. ¶ 16.)  Later that day, she sent Defendant a letter stating that Defendant had not complied with the meet and confer requirements.  (Mot. p. 6, Kim Decl. ¶ 16, Ex. N.)  Defense counsel prepared a Certificate of Non-Appearance to reflect Plaintiff’s failure to appear at the noticed deposition on August 23, 2022, and followed up with a letter to Plaintiff.  (Mot. p. 6, Kim Decl. ¶ 18, Ex. O-P.)  Defense counsel continued attempting to set a deposition date, yet Plaintiff “expressed her refusal to meet and confer; berated Defendant’s counsel; wrongly engaged in character assaults directed at Defendant’s counsel, including improper threatening comments; and refused to unequivocally agree to appear at her deposition.”  (Mot. p. 7; Kim Decl. ¶¶ 19-20, Exs. P-T.)

            Plaintiff has also attempted to obstruct Defendant’s discovery attempts by filing six motions to quash subpoenas issued to the custodians of record for Plaintiff’s purported health care providers, which were issued to determine Plaintiff’s medical claims.  (Mot. p. 7; Kim Decl. ¶ 21.)  Plaintiff reserved dates for these Motions in 2023 and 2024, after the October 3, 2022, trial date, thus, preventing Defendant from obtaining necessary information in the case.  (Ibid.)

Throughout this litigation, Plaintiff has demonstrated contempt and disrespect of this Court and its proper orders and rulings. Plaintiff has also engaged in personal attacks on Defendant’s counsel, improperly casting aspersions on counsel’s reputation and honesty.  (Mot. p. 9; Kim Decl. ¶¶ 15-17, 20; Exs. M, N, R, S.)

Plaintiff’s conduct “has deprived Defendant of critical evidence concerning liability and damage issues needed to evaluate the claims presented and prepare for trial and has resulted in severe, undue prejudice against Defendant.” (Mot. p. 7; Kim Decl. ¶ 22.)  Furthermore, Plaintiff’s conduct “constitutes a misuse and abuse of the discovery process, is without substantial justification, and is in direct contravention of the interests of justice.”  (Mot. p. 8; Kim Decl. ¶ 23.)

Defendant argues that given the totality of Plaintiff’s conduct, the clear and blatant disregard of Plaintiff’s discovery obligations and this Court’s discovery orders, imposing terminating sanctions and dismissing Plaintiff’s entire action is warranted.  (Mot. pp. 8-9.)  Defendant relies on Code of Civil Procedure §§ 2031.300(i), 2030.300(e), 2025.450(h), and 2023.030(d)(3) in seeking sanctions.  Furthermore, he argues that pursuant to Code of Civil Procedure § 2023.010, misuse of discovery is subject to sanctions and includes:

(d) Failing to respond or to submit to an authorized method of discovery [which includes interrogatories, demands for production, and depositions amongst other methods of discovery (see Code of Civil Procedure § 2019.010)]; “(e) Making, without substantial justification, an unmeritorious objection to discovery”; “(f) Making an evasive response to discovery”; “(g) Disobeying a court order to provide discovery”; and “(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(Mot. p. 10.)  Defendant argues that Plaintiff’s conduct is synonymous with all of these provisions.

            Defendant also argues that terminating sanctions should be imposed because Plaintiff’s violations are willful, there is a history of abuse of the discovery process, and evidence shows that less severe sanctions have not produced compliance.  (Mot. p. 10.)  Plaintiff has violated multiple discovery orders, delayed, and obstructed Defendant’s attempts to conduct discovery, “filed meritless oppositions” and has not “even marginally complied with any of the court orders pertaining to said discovery.”  (Mot. pp. 10-11; Kim Decl. ¶ 3-23, Exs. A-T.)  Plaintiff has not paid monetary sanctions imposed for previous violations in the case and has not been motivated to comply with any discovery orders.  (Mot. p. 11, Kim Decl. ¶ 3-23, Exs. A-T.)  By withholding information and obstructing discovery “Plaintiff has substantially interfered with Defendant’s ability to prepare to meet Plaintiff’s claim for damages as a whole” and thus, neither issue nor evidence sanctions will remedy the situation.  (Mot. p. 11.)

            Defendant argues that the action was commenced 30 months prior to the filing of the instant Motion regarding a motor vehicle accident that allegedly occurred 4.5 years ago, yet Plaintiff has “disregarded her discovery obligations for months” and has not contributed to an expedient resolution of the matter.  (Mot. p. 12.)

            Finally, Defendant seeks to have the Motion deemed heard as timely-noticed relative to the instant trial date, pursuant to Code of Civil Procedure § 2024.050.  (Mot. p. 12.)  Defendant states that he has met and conferred with Plaintiff, but no resolution was reached regarding the instant Motion.  (Mot. p. 12, Kim Decl. ¶ 24, Ex. U.)  Defendant argues that the following factors should be considers: a) Defendant’s and his counsel’s due diligence in attempting to obtain responses to discovery, b) Plaintiff’s delays and lack of cooperation in responding to discovery, regardless of Court orders, c) Plaintiff’s delays in challenging Court orders, d) rescheduling of hearing on motion to compel deposition and additional extensions, e) scheduling of the instant Motion at the earliest available date, and f) defense counsel’s good faith efforts to meet and confer with Plaintiff prior to filing the Motion.  (Mot. p. 13, Kim Decl. ¶ 3-24, Exs. A-U.)

B.    Plaintiff’s Opposition

In her Opposition, Plaintiff states that she contacted Defendant on several occasions on the telephone to set a deposition date within the 40-day timeframe ordered by the Court.  (Oppos. p. 6; Jackson Decl. ¶16.)  Defendant unilaterally set a deposition date without meeting and conferring with Plaintiff, did not consider any other dates, and disregarded Plaintiff when she told counsel that that she would only be willing to attend the deposition, “on the condition that it be rescheduled if her health prevented attendance.”  (Ibid.)  She informed defense counsel on various occasions that she would be unable to attend due to her medical condition, but defense counsel was unwilling to change the dates.  (Ibid.; Jackson Decl. ¶16, Ex. C.)

            Plaintiff opposes terminating sanctions because she “never willfully disregarded court orders,” as evidenced by her attempts to meet and confer regarding deposition dates.  (Oppos. p. 7.)  She argues that she “has been willing and prepared to set a deposition date that was within the 40-day timeframe ordered by the Court; however, defendant set a date unilaterally that Plaintiff unfortunately was unable to attend” and did not consider any other dates.  (Ibid.; Jackson Decl. ¶ 17.)  Terminating sanctions are not appropriate here as they would provide an unfair advantage to Defendant, greatly prejudice Plaintiff, and would not enable Defendant to obtain any discovery.  (Oppos. pp. 7-8.)

Plaintiff also argues that Defendant has disobeyed court orders and failed to meet and confer while “Plaintiff graciously agreed to accept defendant’s unilaterally set deposition date upon the condition that the date be flexible, in case Plaintiff’s health made attendance impossible.”  (Ibid.; Jackson Decl. ¶ 18.)  Plaintiff has made “no attempt to thwart or evade the discovery process.”  (Oppos. p. 8.)

C.    Defendant’s Reply

In his Reply, Defendant argues that “Plaintiff has engaged in continued flagrant and willful transgressions of the code and rules with respect to continuing hearings, filing untimely papers, none-service of papers, service of papers that were never filed, failing or otherwise refusing to respond to properly propounded and subsequently court ordered discovery pertaining to key issues of liability and damage, and engaging in misuse and abuse of the discovery process, by blocking discovery.”  (Reply p. 2.)  Plaintiff’s conduct has prejudiced Defendant in the discovery process.  (Ibid.)  Defendant states that Plaintiff has not presented any medical proof “which relieves her of her responsibility to comply or permits the blocking of discovery.”  (Ibid.)  While Plaintiff has drafted and filed lengthy motions and oppositions and appeared at multiple hearings, she has refused to respond to authorized and court-ordered discovery.  (Ibid.)

Defendant also argues that the Opposition was not submitted timely and should not be considered.  (Ibid.)  In the case it is considered, Defendant argues that Plaintiff’s time for compliance with the Court order to appear at a deposition was extended 40 days, thus, providing Plaintiff with additional time to appear at a deposition.  (Ibid.)

Defendant also contests Plaintiff’s argument regarding his failure to meet and confer and refers to the Motion, where he outlines several instances where he offered dates for the deposition.  (Ibid. at pp. 3-4.)  Defendant also points to Plaintiff’s communications, attached to the instant Motion demonstrating Plaintiff’s “defiance and contempt of this Court’s orders.”  (See Mot. Exs. M, N, R, S.)

Defendant also argues that Plaintiff’s Opposition is silent regarding her failure to respond to written discovery requests, supported by Court orders compelling responses to these requests, and her efforts to quash subpoenas issued to the custodians of record for her health care providers.  (Reply p. 5.)

Finally, Defendant reiterates that Plaintiff’s conduct constitutes “misuse and abuse of the discovery process, is without substantial justification, and is in direct contravention of the interests of justice.”  (Ibid.)  Given that monetary sanctions have not worked in the past to motivate compliance with the discovery requests and Court orders, Defendant seeks terminating sanctions in this case.  (Ibid. at pp. 6-8.)

D.    Analysis

As an initial matter, the Court, in its discretion and having considered the factors outlined by Defendant, deems Defendant’s Motion timely filed.  (Code of Civ. Proc. § 2024.050.)

The Court finds that terminating sanctions are appropriate at this point in this matter.  Defendant has produced ample evidence demonstrating Plaintiff’s refusal to comply with discovery requests and subsequent Court orders compelling Plaintiff’s compliance.  Plaintiff unsuccessfully opposes only one of Defendant’s examples regarding Defendant’s efforts to depose Plaintiff.

Plaintiff has continuously refused to comply with Defendant’s requests and, since initiating the action in March 2020, has filed at least two dozen motions and numerous oppositions.  Plaintiff has also filed several motions to void, vacate, and reconsider Court orders.  Plaintiff’s conduct has demonstrated an unwillingness on her part to expeditiously resolve the matter and reach a just resolution with Defendant, as Plaintiff has expended her time and resources in challenging Defendant’s requests and the Court’s orders instead of proceeding to resolve the case.

The Court also finds that lesser sanctions have not been effective as monetary sanctions have been granted but have not motivated Plaintiff to comply with discovery requests and Court orders.

Having considered the totality of circumstances and finding that there has been willful violation of discovery orders, a history of abuse and misuse of the discovery process, and evidence that lesser sanctions have not motivated compliance, the Court finds terminating sanctions are appropriate in this case.

For these reasons, Defendant’s Motion for Terminating Sanctions is GRANTED.  The case is dismissed with prejudice.

IV.           Conclusion & Order

For the foregoing reasons, Defendant Jorge Hernandez’s Motion for Terminating Sanctions is Deemed Timely and GRANTED.  The Complaint is dismissed with prejudice.

Moving party is ordered to give notice.