Judge Lee S. Arian, Case Number: 22STCV27123, Date: 2024-12-06 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV27123, Date: 2024-12-06 Tentative Ruling

Case Number: 22STCV27123 Hearing Date: December 6, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION FOR TERMINATING SANCTIONS

Hearing Date: 12/6/24

CASE NO./NAME: 22STCV27123 COREY BROWN vs EGL PROPERTIES, INCORPORATED, et al.

Moving Party: Defendant EGL Properties

Responding Party: Unopposed

Notice: Sufficient

Ruling: GRANTED

Legal Standard

Code of Civil Procedure § 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.)

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.)

Discussion

On August 19, 2022, Plaintiff filed the present premises liability action against Defendant EGL Properties. On June 11, 2024, the court granted Plaintiff’s counsel’s motion to be relieved as counsel. Since that time, Plaintiff has been proceeding pro per. Defendant now moves the court for terminating sanctions based on Plaintiff’s violation of the following court orders:

On August 9, 2024, this Court granted Defendant’s motion to compel and ordered Plaintiff to appear for deposition within 30 days. Defendant served an amended deposition notice for September 6, 2024, and personally delivered the remote deposition credentials to Plaintiff’s last known address. Plaintiff failed to appear for the deposition and did not respond to Defendant’s meet and confer efforts to reschedule.

On September 17, 2024, this Court granted Defendant’s motion to compel and ordered Plaintiff to serve verified responses to Defendant’s Form Interrogatories, Set Two, by October 7, 2024. Plaintiff has neither complied nor requested an extension.

Furthermore, Plaintiff has failed to respond to Defendant’s meet-and-confer efforts or contribute to trial preparations. Despite Defendant's attempts to collaborate on joint trial documents, Plaintiff refused to provide any input. After the final status conference was continued to October 2, 2024, Defendant again sent draft trial documents requesting Plaintiff’s portions, but Plaintiff failed to respond.

It appears Plaintiff has effectively abandoned this case following the Court’s order relieving his counsel. Plaintiff failed to oppose Defendant’s motion to compel his deposition and did not appear at the hearing on that motion. Despite the Court granting Defendant’s motion and ordering Plaintiff to appear for deposition, Plaintiff failed to comply and made no effort to reschedule or justify his noncompliance.

Similarly, Plaintiff did not oppose Defendant’s motion to compel initial discovery responses, failed to appear at the hearing, and disregarded the Court’s subsequent order requiring him to serve verified responses. Plaintiff has also consistently refused to engage in meet-and-confer efforts related to discovery or trial preparation, including Defendant’s attempts to prepare and finalize joint trial documents. Additionally, Plaintiff did not oppose Defendant’s present motion for terminating sanctions.

The Court finds that Plaintiff has abandoned his case, willfully failed to comply with the Court’s orders, and that less severe sanctions would not ensure compliance with discovery rules. Accordingly, the motion for terminating sanctions is granted.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.