Judge Lee S. Arian, Case Number: 22STCV06145, Date: 2024-02-06 Tentative Ruling

MOVING PARTY: Defendant International Transportation Service, LLC (“Defendant”)

This action arises from Plaintiff Marvelette Calbert (“Plaintiff”) sustaining injuries when a window fell onto her left hand on January 4, 2021. On February 17, 2022, Plaintiff filed a complaint against Defendant International Transportation Service, LLC (“Defendant”) and DOES 1 through 20, alleging a cause of action for negligence.

On August 18, 2022, Plaintiff filed a substitution of attorney form indicating that Plaintiff was now self-represented.

On October 9, 2023, after hearing, the Court granted Defendant’s motion to compel Plaintiff’s responses to Defendant’s Request for Production of Documents, Set One. (10/09/23 Minute Order.) The Court ordered Plaintiff “to provide verified, objection-free responses to . . . Defendant’s Request for Production of Documents, Set One, within 30 days of [the Court’s] order.” (10/09/23 Minute Order at p. 2.)

On December 4, 2023, Defendant filed and served the instant motion for terminating sanctions or, in the alternative, motion for an order compelling Plaintiff to attend her deposition and produce any requested documents, to be scheduled within 45 days of the Court’s order.

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

Defendant has met and conferred as required under Code Civ. Proc., § 2025.450 as to its request to compel Plaintiff to attend deposition and produce documents. (Trucios Decl., ¶ 13.)

“If a party . . . fails to obey [an] order compelling a response, the court may make those orders that are just, including the imposition of . . . a terminating sanction.” (Code Civ. Proc., § 2031.300, subd. (c).) Terminating sanctions may be imposed against a party engaging in misuse of the discovery process. (Code Civ. Proc., § 2023.030.)

“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.) “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.) “[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.)

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party to the action . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

If a motion under Code Civ. Proc. § 2025.450(a) is granted “the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Counsel for Defendant Paula Andrea Trucios (“Trucios”) declares that Plaintiff has not provided responses to Set One of Defendant’s Request for Production of Documents. (Trucios Decl., ¶ 9.) Counsel states that on October 9, 2023, Defendant’s motion to compel Plaintiff’s responses to Set One of Defendant’s Request for Production of Documents was granted, and Plaintiff was ordered to provide verified, objection-free responses to such discovery within 30 days of such order. (Id., ¶ 15 and Exhibit F.) Defendant sent Plaintiff notice of the Court’s October 9, 2023 order. (Id., ¶ 16 and Exhibit G.) Defendant re-sent a copy of Set One of Defendant’s Request for Production to Plaintiff upon Plaintiff’s request. (Id., ¶ 17.)

Trucios also declares that on September 18, 2023, Defendant served Plaintiff with a Notice of Videotaped Deposition with Demands for Inspection, to be held on October 3, 2023 at 10:00 a.m. (Trucios Decl., ¶ 10; Exhibit D.) Plaintiff did not object to the Notice of Videotaped Deposition with Demands for Inspection. (Id., ¶ 11.) Plaintiff, however, failed to appear for her deposition and an Affidavit of Nonappearance of Witness was produced by the court reporter. (Id., ¶ 12 and Exhibit E.) Following the deposition, Trucios spoke with Plaintiff by phone, in which Plaintiff claimed that she was unaware that her deposition had been scheduled or that it was scheduled for October 3, 2023. (Id., ¶ 13.) Trucios declares that on several occasions during phone conversations, she confirmed with Plaintiff that the address and email for Plaintiff in Defendant’s file are correct. (Id., ¶ 14.)

The Court finds that Plaintiff has failed to comply with the Court’s October 9, 2023 order. Plaintiff had notice of this Court’s October 9, 2023 order. Due to that notice and the lack of opposition to the motion, the Court finds that Plaintiff’s failure to comply was willful.

Further, Plaintiff failed to comply with the Deposition Notice. And, Defendant has failed to oppose this Motion. Given the two failures to comply with discovery, the failure to comply with a court order regarding the written discovery, and the failure to file any opposition to the Motion, the Court finds that less severe sanctions than terminating sanctions would not be effective and GRANTS Plaintiff’s request for terminating sanctions.

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