Judge Lee S. Arian, Case Number: 19STCV33744, Date: 2023-11-17 Tentative Ruling

This action arises from Plaintiff Vahe Leon Andonian (“Plaintiff”) tripping and falling on a sidewalk. On September 24, 2019, Plaintiff filed a complaint against Defendants City of Glendale (“Defendant”), County of Los Angeles, and DOES 1 to 50, inclusive, alleging causes of action for: (1) Premises Liability and (2) General Negligence.

On April 25, 2022, pursuant to Plaintiff’s request for dismissal, Defendant County of Los Angeles was dismissed from this action without prejudice.

On November 17, 2023, the Court granted Defendant’s motion to compel Plaintiff’s deposition and ordered Plaintiff to appear for deposition within 30 days. (11/17/23 Minute Order at p.3.) The Court also ordered Plaintiff to pay monetary sanctions in the total amount of $500.00. (Id.)

On November 20, 2023, Defendant filed and served notice of the Court’s November 17, 2023 order.

On January 25, 2024, Defendant filed and served the instant motion to dismiss this action pursuant to CCP § 2023.030(d)(3) on the grounds that Plaintiff disobeyed this Court’s order compelling his deposition (the “Motion”). Alternatively, Defendant requests issue and evidentiary sanctions against Plaintiff. Although filed and captioned as a motion to dismiss, the Motion is effectively a motion for terminating sanctions.

Defendant’s motion is unopposed. Any opposition brief was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

If a party fails to obey a court order compelling such party’s deposition “[t]he court may make those orders that are just against the disobedient party . . . including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., § 2025.480, subd. (k).) A terminating sanction is imposed when there is “[a]n order dismissing the action, or any part of the action, of that party.” (Code Civ. Proc., § 2023.030, subd. (d)(3).)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992, internal quotations omitted.) “Discovery 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.” (Ibid. internal quotations omitted.) “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Ibid.) Where discovery violations are “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.” (Ibid.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. (Ibid.)

Carl B. Arias (“Arias”), Counsel for Defendant, provides a declaration in support of the Motion. Counsel declares that Defendant first noticed Plaintiff’s deposition for April 20, 2023; however, on April 19, 2023, Plaintiff’s counsel informed Defendant’s counsel that she could not attend the deposition due to a family emergency. (Arias Decl., ¶ 2.) The parties conferred on a new deposition date and such deposition was scheduled for May 9, 2023. (Id.) On May 8, 2023, Plaintiff’s counsel called Defendant’s counsel stating that Plaintiff could not attend the May 9, 2023, deposition due to Plaintiff being ill. (Id., ¶ 3.)

The parties met and conferred and set a July 13, 2023, deposition date; however, on July 11, 2023, Plaintiff’s counsel indicated that Plaintiff could not attend the deposition due to a conflict. (Arias Decl., ¶¶ 3-4.) Defendant then noticed Plaintiff’s deposition for August 16, 2023. (Id., ¶ 4.) Plaintiff’s counsel e-mailed Defendant’s counsel on August 15, 2023, stating that Plaintiff could not attend the deposition because counsel was ill. (Id., ¶ 5.) Plaintiff failed to appear for his August 16, 2023, noticed deposition. (Id., ¶ 6.)

On November 17, 2023, the Court granted Defendant’s motion to compel Plaintiff’s deposition and Plaintiff was ordered to appear for deposition within 30 days and pay monetary sanctions in the amount of $500.00. (Arias Decl., ¶ 7.) Plaintiff’s counsel agreed to produce Plaintiff for deposition on December 28, 2023; however, such date was rescheduled to January 16, 2024, at the request of Plaintiff’s counsel who stated that Plaintiff was ill. (Id., ¶ 8; Exhibit.) Plaintiff failed to appear for his January 16, 2024, deposition and has not paid the monetary sanctions ordered by the Court pursuant to its November 17, 2023 order. (Id., ¶¶ 7-9; Exhibits B-C.) Counsel also states that Plaintiff failed to appear for his noticed physical examination. (Id., ¶ 10.) Defendant has been prejudiced due to the inability to depose Plaintiff or obtain an IME. (Id., ¶ 11.)

The Court finds Plaintiff failed to comply with the Court’s November 17, 2023 order. Plaintiff had notice of this Court’s November 17, 2023 order and does not present any evidence addressing his failure to comply. Thus, the Court finds that such failure was willful.

Beyond the willful failure to comply with the court order re appearing for deposition, Plaintiff has also failed to comply with the Court’s order to pay sanctions. Taken in concert with Plaintiff’s failure to appear at several noticed depositions, the Court finds that sanctions short of terminating sanctions are unlikely to result in Plaintiff’s compliant participation in this case. That finding is supported by the fact that Plaintiff did not even oppose the current motion. The Court thus grants Defendant’s motion and hereby issues terminating sanctions against Plaintiff.

Defendant’s motion, now deemed a motion for terminating sanctions, is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that 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 matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court