Judge: Katherine Chilton, Case: 20STLC10509, Date: 2023-03-23 Tentative Ruling

Case Number: 20STLC10509     Hearing Date: March 23, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR TERMINATING SANCTIONS

MOVING PARTY:   Defendant Diane S. Freeman

RESP. PARTY:         None

MOTION FOR TERMINATING SANCTIONS

(CCP §§ 2023.010, et seq.)

TENTATIVE RULING:

Defendant Diane S. Freeman’s Motion for Terminating Sanctions is 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:          None filed as of March 21, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of March 21, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On December 18, 2020, Plaintiff Kindrick Clark (“Plaintiff”) filed an action for motor vehicle and general negligence against Defendant Diane S. Freeman (“Defendant”), arising out of an alleged automobile accident that took place on December 26, 2018.  On March 17, 2021, Plaintiff filed an Amendment to the Complaint to correct his name to “Kendrick Clark.”

Defendant filed an Answer on April 19, 2021.

On March 2, 2022, pursuant to a stipulation of the parties, the Court continued trial from June 16, 2022, to December 22, 2022, along with discovery and motion cut-off dates.  (3-2-22 Stipulation and Order.)

On August 19, 2022, Defendant filed a Motion to Compel Plaintiff’s Attendance at Deposition.  On September 21, 2022, the Court granted Defendant’s Motion and ordered Plaintiff to appear for deposition at a time, place, and date to be noticed by Defendant within ten days of notice of the Court’s order.  (9-21-22 Minute Order.)

On December 16, 2022, the court granted Defendant’s Ex Parte Application to Continue Trial and continued the trial date to May 16, 2023.  (12-16-22 Minute Order.)

Plaintiff’s counsel Michael H. Moghtader, Esq. filed a Motion to be Relieved as Counsel on January 9, 2023, set for hearing on April 17, 2023.

On February 16, 2023, Defendant filed the instant Motion for Terminating Sanctions for Failure to Comply with Court Order (“Motion”).  No opposition has been filed.

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

Defendant moves for terminating sanctions, including dismissal of the action in its entirety, for Plaintiff’s “willful refusal to obey an Order of this Court.”  (Mot. p. 1.)

The case arises out of an automobile collision on December 26, 2018; Plaintiff was a passenger in a vehicle that was hit by Defendant’s vehicle.  (Kashani Decl. ¶ 3.)  Plaintiff initiated the action by filing the Complaint on December 18, 2020.  (Ibid. at ¶ 4.)  Plaintiff was served with discovery on April 19, 2021, and provided responses on July 9, 2021.  (Ibid. ¶ 5.)  Defendant set depositions dates to depose Plaintiff on six separate occasions – July 21, 2021, December 21, 2021, February 1, 2022, March 8, 2022, March 21, 2022, and April 14, 2022.  (Ibid. at ¶ 6.)  Plaintiff did not appear for the noticed deposition on April 14, 2022; therefore, Defendant filed a motion to compel Plaintiff’s deposition.  (Ibid. at ¶ 7.)  The Court granted Defendant’s motion on September 21, 2021, and ordered Plaintiff to appear for deposition on a date set by Defendant within ten days of notice of the Court Order.  (Ibid.; 9-21-22 Minute Order.)  Prior to the deposition set for October 13, 2022, Plaintiff’s counsel notified defense counsel that she could not locate Plaintiff and requested to continue the deposition to October 19, 2022; Defendant granted the request.  (Ibid. at ¶ 8.)  On October 18, 2022, Plaintiff’s counsel confirmed that Plaintiff would appear at the deposition.  (Ibid. at ¶ 9.)  However, on October 19, 2022, the date of the deposition, Plaintiff’s counsel appeared without Plaintiff.  (Ibid. at ¶ 10.)  The parties waited until 10:20 a.m. and Plaintiff’s counsel attempted to reach Plaintiff, but he had turned off his phone.  (Ibid.)  As of the date of the instant Motion, Plaintiff has not appeared for a deposition.  (Ibid. at ¶ 11.)  Plaintiff’s counsel has informed defense counsel that he has been difficult to reach.  (Ibid.)

Defendant states that the Complaint was filed two years ago and “Defendant has been unable to complete Plaintiff’s deposition to meaningfully assess the basis of Plaintiff’s claims and enter into fruitful negotiations in an attempt to resolve this matter.”  (Mot. p. 3.)  Defendant argues that Plaintiff failed to appear for scheduled depositions on six different occasions since July 21, 2021, and ultimately failed to appear at the court ordered deposition on October 19, 2022.  (Ibid. at p. 7.)  Furthermore, “Plaintiff’s repeated refused to comply with their court ordered deposition constitutes a preclusion of the moving Defendant’s ability to mount a comprehensive defense based on the readily available facts of the case.”  (Ibid. at p. 8.)  Plaintiff’s failure to appear for scheduled depositions “has prejudiced “defendant’s ability to adequately prepare a defense at trial.”  (Ibid.)  Thus, the Motion should be granted, and the lawsuit should be dismissed to prevent Plaintiff from “abusing both the Defendant and this Court’s resources.”  (Ibid. at p. 4.)  Alternatively, Defendant requests appropriate issue and evidentiary sanctions that would preclude Plaintiff from producing “any evidence, including testimony on any of the matters addressed by the unanswered discovery and imposing monetary sanctions in the sum of $760.00.”  (Ibid. at p. 9.)

The Court notes that Defendant has not authenticated exhibits attached to the motion as true and correct copies through counsel’s declaration; therefore, the exhibits cannot be admitted into evidence and considered by the Court.  (Ev. Code. § 1400, et seq.)

In determining whether terminating sanctions are appropriate in the instant case, the Court considers the totality of the circumstances, including whether there has been a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.

The Court finds that Plaintiff initiated the action more than two years ago.  Throughout the litigation, he has failed to appear for several scheduled depositions and has also violated a Court order compelling his deposition.  Plaintiff has not opposed the Motion and has not presented any justification for his discovery order violation and history of abuse of the discovery process.  Moreover, Plaintiff’s counsel states that Plaintiff has been difficult to reach.  This is further supported by Plaintiff’s counsel’s Motion to be Relieved as Counsel, filed on January 9, 2023, in which Counsel states that Plaintiff “has failed to respond to telephone messages and written material mailed to him.”  (MC-052 ¶ 2.)  The Court finds that there is sufficient evidence to demonstrate Plaintiff’s unwillingness to prosecute the lawsuit and comply with discovery orders.

The Court finds that terminating sanctions are appropriate at this point in this matter.  Given that both Defendant and Plaintiff’s counsel have been unable to reach Plaintiff, the Court does not find that lesser sanctions, such as monetary sanctions, will motivate Plaintiff to comply with discovery requests and Court orders.

For these reasons, the Court grants Defendant’s Motion for Terminating Sanctions and dismisses Plaintiff’s Complaint.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Diane S. Freeman’s Motion for Terminating Sanctions is GRANTED.  The Complaint is dismissed with prejudice.

Moving party is ordered to give notice.