Judge Lee S. Arian, Case Number: 20STCV29627, Date: 2023-11-02 Tentative Ruling

On August 5, 2020, Plaintiff Isidro Patino (“Plaintiff”) filed this action against Defendants National Ready Mixed Concrete Company (“Defendant”) and Does 1 to 50, asserting one cause of action for general negligence.

The Attachment to the Complaint alleges the following: On August 8, 2019, “Plaintiff was holding a shoot from a cement truck when a large amount of cement came down and jerked the portion of the shoot he was holding. This caused Plaintiff to be injured. Defendant was not operating the vehicle and machine in a safe manner that directly resulted in the jerking of the instrumentality that caused Plaintiff’s harm.”

On August 4, 2023, Plaintiff’s counsel appeared at the Order to Show Cause Re: Dismissal for Failure to File Entry of Default.

On September 7, 2023, Defendant filed motions to compel Plaintiff’s initial responses to its Form Interrogatories (Set One), Special Interrogatories (Set One), and Demand for Inspection and Production of Documents (Set One).

On September 25, 2023, counsel for both parties appeared at the Trial Setting Conference, and the Court set the non-jury trial for its current date, September 24, 2024, and the Final Status Conference for September 10, 2024.

On November 2, 2023, counsel for both parties appeared at the hearing of Defendant’s motions to compel. The Court granted the unopposed motions and ordered Plaintiff to (1) serve responses to the discovery requests and (2) pay sanctions of $640 to Defendant within 30 days of the ruling. Counsel for both sides submitted to the Court’s ruling.

On December 11, 2023, Defendant filed the instant motion for terminating sanctions and monetary sanctions.

“[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.)

Defendant argues that terminating sanctions against Plaintiff are warranted because: (1) on November 2, 2023, the Court ordered Plaintiff to respond to Defendant’s discovery requests and to pay monetary sanctions, but Plaintiff gas failed to comply with that order (Motion, pp. 6:21-23; 7:25-8:2; Declaration of Jennifer W. Naples, ¶ 11; (2) “A sanction of a lesser order would be inadequate and unfair to Defendant, which has been diligent in this case and yet has been prevented from preparing its defense on Plaintiff” (Motion, p. 6:10-21); and (3) “It is clear Plaintiff has no intention of complying with the Court’s orders, and Defendant is concerned that Plaintiff has abandoned his case.” (Motion, p. 6:23-24.)

The Court finds that terminating sanctions are warranted because Plaintiff has failed to comply with the Court’s order re discovery and, further, and perhaps most tellingly, Plaintiff has failed to oppose this motion.

Defendant also seeks sanctions of $980, consisting of 2 hours counsel spent on the moving papers, 1 hour she anticipated spending reviewing any opposition and preparing a reply, and 1 hour preparing for the hearing, a total of 4 hours at a billing rate of $230 per hour ($920), plus $60 filing fee.

The Court denies the request for monetary sanctions in addition to terminating sanctions. The terminating sanctions are already sufficient sanctions under the circumstances.

The request for terminating sanctions is GRANTED. The request for monetary sanctions is DENIED.

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