Judge Lee S. Arian, Case Number: 20STCV23993, Date: 2023-11-01 Tentative Ruling

On June 25, 2020, Plaintiff Edith Cortez (“Plaintiff”) filed this action against Defendants Christopher Landry (“Defendant”) and Does 1 to 10, asserting one cause of action for general negligence.

The Complaint alleges the following. On June 27, 2018, Plaintiff was a pedestrian walking or jogging in Pasadena, California, when suddenly and without warning, she was struck from behind and knocked to the ground by Defendant, who was riding his bicycle. Defendant had negligently crossed over into the walking path and/or was negligent when he failed to maintain a safe distance from Plaintiff as he attempted to pass her.

On December 23, 2021, the Court held the Non-Jury Trial but noted that there were no appearances by any party, like in the Final Status Conference on December 9, 2021. Therefore, the Court dismissed the case.

On May 13, 2022, Plaintiff filed an ex parte application for an order setting aside the dismissal.

On July 29, 2022, the Court granted the motion and vacated the dismissal. At that hearing, the Court noted no Proof of Service of Summons on file and, therefore, instead of setting a trial date or Final Status Conference, set an OSC re: Failure to File Proof of Service of Summons on September 29, 2022.

On September 29, 2022, the Court continued the OSC re: Failure to File Proof of Service of Summons to December 30, 2022, because the defendants had not been served.

On December 19, 2022, Plaintiff filed a Proof of Service of Summons on Defendant.

On December 30, 2022, the Court held the OSC re: Failure to File Proof of Service of Summons and set the Trial Setting Conference. Plaintiff appeared, but Defendant did not appear at the hearing.

On March 14, 2023, the Court held the Trial Setting Conference. Defendant did not appear at the hearing. Pursuant to Plaintiff’s request, the Court continued the Trial Setting Conference to May 18, 2023.

On April 4, 2023, Defendant filed three (3) discovery motions, seeking orders compelling Plaintiff to serve initial responses to Defendant’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One). Defendant also sought orders imposing sanctions against Plaintiff.

On May 18, 2023, Plaintiff did not appear at the Trial Setting Conference; only Defendant appeared. Therefore, the Court continued the hearing to June 20, 2023. The Court ordered all parties to appear at the next hearing date.

On June 20, 2023, Plaintiff and Defendant appeared at the Trial Setting Conference. The Court set the jury trial to its current date, April 3, 2024.

On November 1, 2023, the Court held the hearings on Defendant’s discovery motions. Only Defendant appeared. The Court granted all three (3) unopposed motions and ordered Plaintiff to serve her responses and pay sanctions within 30 days of that ruling.

On December 1, 2023, Defendant filed the instant motion for terminating sanctions, arguing that Plaintiff has not paid sanctions or served her discovery responses in violation of the Court order on November 1, 2023.

“[A] terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) Instead, “[a] monetary sanction is immediately enforceable as a judgment, unless the court rules that it is not. In an appropriate case failure to pay an ordered sanction is punishable as a contempt.” (Id. at p. 610.)

However, if a party engages in the misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., § 2023.030.)

“Misuses of the discovery process include, but are not limited to, the following: … (d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] 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 the discovery.’ [Citation.]” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (“Los Defensores”).)

“Generally, ‘[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.’ [Citation.]” (Los Defensores, supra, 223 Cal.App.4th at p. 390.)

Defense counsel attests to the following facts in support of the instant motion for terminating sanctions. According to the Court’s order dated November 1, 2023, Plaintiff was to (1) provide verified responses, without objections, to Defendant’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) and (2) pay sanctions of $584.95 by December 1, 2023. (Motion, Declaration of Mark Jubelt (“Jubelt Decl.”), ¶ 6.) Defendant gave Plaintiff notice of that ruling. (Jubelt Decl., Exhibit A – a copy of the Notice of Ruling re Motions to Compel Discovery Responses.) However, as of the date Defendant filed the instant motion on December 1, 2023, Plaintiff had not neither paid sanctions nor served verified responses to the discovery requests. (Jubelt Decl., ¶ 7.) Defendant will be prejudiced by any further delay by Plaintiff in providing the discovery responses, and, without those responses, Defendant will not be able to adequately defend himself at trial. (Jubelt Decl., ¶ 8.)

The Court finds that terminating sanctions are warranted because Plaintiff has failed to comply with the Court’s order regarding discovery and also failed to oppose this motion. In addition, this case has been pending since 2020. It is now 2024, the trial date is quickly approaching, and no progress has been made with regard to discovery.

Defendant Christopher Landry’s Motion for Order Terminating Sanctions and Dismissal of the Action Based on Plaintiff’s Failure to Obey the Court’s Order Compelling Responses to Discovery is GRANTED.

The Court orders the Complaint filed by Plaintiff Edith Cortez on August 5, 2020, dismissed with prejudice.

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’s 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