Judge Kerry Bensinger, Case Number: 22STCV33596, Date: 2023-12-22 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On October 14, 2022, Plaintiff, Guillermo Rodriguez, filed this action against Defendant, Kristie Smith, in her capacity as an individual, as successor trustee of the Lou Cutell Trust, and as sole successor in interest to the Estate of Lou Cutell. Plaintiff alleges that Defendant unduly influenced decedent Lou Cutell to remove Plaintiff from receiving his inheritance under decedent’s trust. Plaintiff is currently self-represented.[1]

On December 6, 2023, Defendant filed a motion to compel Plaintiff’s further responses to Special Interrogatories, Set One. Defendant requested sanctions against Plaintiff.

On December 12, 2023, Defendant filed a motion to compel Plaintiff’s compliance with his agreement to produce documents in response to Defendant’s Request for Production of Documents, Set One.

On January 4, 2024, the court granted Plaintiff’s counsel’s motion to be relieved as counsel. Plaintiff did not appear at the hearing. On the same day, Plaintiff was served with Notice of the Ruling. The court also set an OSC re: Status of Plaintiff’s Counsel for January 22, 2024.

On January 22, 2024, the court held the OSC re: Status of Plaintiff’s Counsel. Plaintiff did not appear at the hearing. The court continued the OSC to January 31, 2024.

On January 31, 2024, the court held the OSC re: Status of Plaintiff’s counsel and heard Defendant’s motions to compel (filed December 6 and 12). The court granted Defendant’s motions to compel. Plaintiff did not appear at the hearing. The court set an OSC re: Dismissal for Failure to Prosecute for February 27, 2024.

On February 27, 2024, the court held the OSC re: Dismissal for Failure to Prosecute. Plaintiff did not appear at the hearing. The court continued the OSC to April 8, 2024, stating, “If … Plaintiff fails to appear on the next hearing date, the Court will dismiss the matter pursuant to CCP 581(b)(5) and 581(g).”

Code of Civil Procedure section 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, subd. (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 (Deyo).)¿¿¿¿¿

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, supra, 84 Cal.App.3d at p. 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 p. 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].)¿¿¿

The court may dismiss an action without prejudice when either party fails to appear on the trial and the other party appears and asks for dismissal. (Code Civ. Proc., §¿581, subd. (b)(5).)

As the Second District Court of Appeal stated in Deyo, supra, 84 Cal.App.3d at pp. 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 provide Defendant with responsive documents to her production requests despite agreeing to do so and disobeyed a Court Order compelling him to comply with his agreement.¿¿¿Plaintiff also did not provide further discovery responses to Defendant’s special interrogatories and disobeyed a Court order compelling him to provide further responses. Further, Plaintiff did not file oppositions to Defendant’s motions to compel and, in a familiar pattern, has failed to oppose this motion for terminating sanctions as well.

Terminating sanctions are further appropriate for Plaintiff’s chronic failure to appear for proceedings in this matter. For instance, Plaintiff did not appear for the hearing on Plaintiff’s counsel’s motion to be relieved on January 4, 2024. Plaintiff did not appear at OSCs on January 22, 2024 and February 27, 2024. Plaintiff again did not appear for the hearing on Defendant’s motions to compel and OSC re: Status of Plaintiff’s Counsel on January 31, 2024. Plaintiff was served with notice of the court’s orders from the foregoing hearings. Plaintiff’s unwillingness to advance his claims is palpable.

The court finds Plaintiff knew of his discovery obligations and knew of the Court Orders compelling his compliance and noting his absence at hearings. The court finds Plaintiff’s failure to respond to discovery and to appear in hearings beginning from January 4, 2024 to the present was willful, as was his disobedience to the Court’s Orders.¿ Given Plaintiff’s apparent disinterest in prosecuting this action, the court finds lesser sanctions would not curb the abuse.¿¿

Alternatively, dismissal of the action is proper if Plaintiff does not appear at trial. The court may dismiss an action without prejudice when either party fails to appear on the trial and the other party appears and asks for dismissal. (Code Civ. Proc., §¿581, subd. (b)(5).)

Here, on February 27, 2024, the court issued an order advancing the trial date to April 8, 2024 and stated, “If … Plaintiff fails to appear on the next hearing date, the Court will dismiss the matter pursuant to CCP 581(b)(5) and 581(g).” (Minute Order, 2/27/24.) April 8, 2024, is the next hearing date contemplated by the February 27, 2024, order. Defendant served Plaintiff with notice of the order. (See Notice of Ruling, 3/1/24.) Plaintiff has failed to appear at the past several hearings. If Plaintiff fails to appear on April 8, 2024, and defendant makes a motion to dismiss, the court will alternatively dismiss this case for failure to appear at trial.

The unopposed motion for terminating sanctions is GRANTED. Plaintiff Guillermo Rodriguez’s Complaint against Defendant Kristie Smith is dismissed without prejudice.¿

Alternatively, if Plaintiff fails to appear and Defendant makes a motion to dismiss, the motion to dismiss is GRANTED without prejudice.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff’s counsel’s motion to be relieved as counsel was granted on January 4, 2024.

[2] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)