Judge Kerry Bensinger, Case 20STCV24495 2023-04-25 Tentative Ruling

On June 30, 2020, plaintiff Aleena Montoya (“Plaintiff”) filed this action against defendants Erika Jannett Salazar, Maria C. Salazar, and Pedro E. Salazar (collectively, “Defendants”) arising from a January 7, 2007 motor vehicle collision.

On February 3, 2023, Plaintiff’s former counsel file notice of entry this Court’s order granting counsel’s motion to be relieved. As such, Plaintiff is presently self-represented.

On December 21, 2022, Defendants filed a motion to compel Plaintiff’s attendance and testimony at deposition. The Court granted the motion on January 25, 2023. Counsel for Plaintiff provided Plaintiff with notice of the ruling on February 2, 2023 by electronic service. To date, Plaintiff has not appeared for deposition or paid any sanctions.

The Court notes that Defendants served Plaintiff with notice of this motion by electronic service. An unrepresented party may consent to receive electronic service. Express consent to electronic service may be given by (i) serving a notice on all parties and filing the notice with the court; or (ii) manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent. (Code Civ. Proc., § 1010.6, subd. (c).) Here, Plaintiff has not filed notice evidencing her express consent to receive electronic service. Accordingly, the Court intends to continue this motion to allow Defendants to serve this motion on Plaintiff by personal service. Notwithstanding this personal service issue, the Court considers the merits of this motion.

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. 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, subds. (d), (g).) A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

The court should consider the totality of the circumstances, including 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 discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) 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, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

A terminating sanction is a “drastic measure which should be employed with caution.” (Deyo, 84 Cal.App.3d at 793.) “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.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions “should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo, 84 Cal.App.3d at p. 793.) “[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.” (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

As the Court stated in Deyo, supra, 84 Cal.App.3d at 795-796, “[t]erminating sanctions are appropriate when a party persists in disobeying the court's orders.” Terminating sanctions are appropriate here for that very reason. Plaintiff did not appear for deposition and disobeyed a Court Order to appear. Given Plaintiff’s failure to comply with discovery obligations and apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse.

However, given the Court’s concern that Plaintiff has not expressly consented to receive electronic service and the drastic nature of terminating sanctions, the Court continues this motion to allow Plaintiff an opportunity to file an opposition.

Based on the foregoing, the Court CONTINUES Defendants’ motion for terminating sanctions to May 26, 2023 at 1:30 p.m. in Department 27 of the Spring Street Courthouse. Defendants are ordered to serve Plaintiff with this motion and all supporting documents by personal service. Plaintiff may file opposition no later than 9 court days before the hearing. Defendants may file a reply no later than 5 court days before the hearing.

Hon. Kerry Bensinger

Judge of the Superior Court