Judge: Lisa R. Jaskol, Case: 20STCV48344, Date: 2025-04-28 Tentative Ruling
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Case Number: 20STCV48344 Hearing Date: April 28, 2025 Dept: 28
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On December 18, 2020, Plaintiffs Ernesto Licon Aguirre (“Aguirre”), Rosario Licon (“Licon”), and Cesar Armando Lopez (“Lopez”) filed this action against Defendants Concepcion H. Garcia (“Garcia”), Los Angeles County Sheriff’s Department, County of Los Angeles (“County”), and Does 1-100 for personal injuries.
On February 26, 2021, Garcia and the County (“Defendants”) filed an answer.
On May 3, 2022, Plaintiffs’ counsel The Law Offices of Larry H. Parker, Inc., associated Bish & Cutting APC as co-counsel for Plaintiffs.
On January 25, 2023, Bish & Cutting APC and The Law Offices of Larry H. Parker, Inc., filed a motion to be relieved as co-counsel for Plaintiffs. The motion was set for hearing on March 1, 2023.
In response, on January 31, 2023, Aguirre, Licon, and Lopez filed “power of attorney” declarations appointing Samuel Licon (“Samuel Licon”) to serve as their agent and attorney in fact.
On February 27, 2023, Aguirre, Licon, and Lopez filed substitution of attorney forms purporting to substitute Samuel Licon as their new legal representative.
On March 1, 2023, the Court granted the motion to be relieved as counsel filed by Bish & Cutting APC and The Law Offices of Larry H. Parker, Inc.
On March 15 and 20, 2023, Defendants filed notices stating that “Simon [sic] Lincon [sic]” or Samuel Licon was not an attorney and was not licensed to practice law. Defendants objected to “Simon [sic] Licon” representing Plaintiffs.
On March 22, 2023, the Court denied Samuel Licon’s ex parte application to continue the trial, finding that the “ ‘individual making the motion is not an attorney [or] a party to the action.’ ”
On March 27, 2023, Defendants filed a notice objecting to Samuel Licon’s unauthorized practice of law and to his purported representation of Plaintiffs. Defendants also objected that Plaintiffs had failed to serve filings on Defendants.
On March 27, 2023, the Court advised Samuel Licon that he could not represent Plaintiffs if he was not a licensed attorney and a power of attorney did not allow him to represent Plaintiffs in court.
On July 11, 2023, the Court granted Defendants’ motions to compel Plaintiffs to appear for independent medical examinations. The Court ordered Aguirre, Licon, and Lopez to appear for an independent medical examination with orthopedic surgeon Thomas Grogan, M.D., on August 2, 2023. The Court also imposed $250.00 in sanctions on each Plaintiff.
On August 3, 2023, Plaintiffs filed a notice of appeal of the Court’s July 11, 2023 order. On September 13, 2023, the Court stayed the action pending the outcome of the appeal. On August 19, 2024, the Court of Appeal dismissed the appeal. On November 25, 2024, the Court of Appeal issued the remittitur.
On April 14, 2025, Plaintiffs filed substitution of attorney forms listing attorney Jeffrey E. Garcia as their new legal representative.
Trial is scheduled for March 2, 2026.
B. These motions
On March 12, 2025, Defendants filed motions for terminating sanctions against Aguirre and Licon. The motions were set for hearing on April 28, 2025.
On April 14, 2025, Plaintiffs filed an opposition.
PARTIES’ REQUESTS
Defendants ask the Court to impose terminating sanctions or, in the alternative, evidentiary sanctions on Aguirre and Licon and to impose monetary sanctions.
Aguirre and Licon ask the Court to deny the motions.
LEGAL STANDARD
A. Monetary, issue, evidentiary, and terminating sanctions
Code of Civil Procedure section 2023.030 provides in part:
“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
“(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
“(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.
“(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.
“(d) The court may impose a terminating sanction by one of the following orders:
“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
“(2) An order staying further proceedings by that party until an order for discovery is obeyed.
“(3) An order dismissing the action, or any part of the action, of that party.
“(4) An order rendering a judgment by default against that party.
“(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.
“(f) (1) Notwithstanding subdivision (a), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.
“(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.
(Code Civ. Proc., § 2023.030.)
B. Sanctions for failure to obey Court order to comply with demand for physical examination
Code of Civil Procedure section 2032.240, subdivision (d), provides:
“If a plaintiff then fails to obey the order compelling response and compliance [with a demand for a physical examination under Code of Civil Procedure section 2032.240, subdivision (b)], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
(Code Civ. Proc., § 2032.240, subd. (d).)
C. Terminating sanctions for failure to comply with discovery orders
A violation of a discovery order may support the imposition of terminating sanctions. (See 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 (Deyo).)
A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, supra, 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 (Mileikowsky).)
DISCUSSION
As noted, on July 11, 2023, the Court granted Defendants’ motions to compel Plaintiffs to appear for independent medical examinations. The Court ordered Aguirre, Licon, and Lopez to appear for an independent medical examination with orthopedic surgeon Thomas Grogan, M.D., on August 2, 2023. The Court also imposed $250.00 in sanctions on each Plaintiff.
Defendants now move for terminating sanctions or, in the alternative, evidentiary sanctions against Aguirre and Licon, asserting that Aguirre and Licon failed to comply with the Court’s July 11, 2023 order. Defendants also ask the Court to impose monetary sanctions.
Plaintiffs oppose the motions, contending they were misled by an individual (Angel German Perez) who falsely held himself out as a licensed attorney and gave them bad advice. Plaintiffs have now retained counsel and they intend to comply with their discovery obligations.
The Court denies Defendants’ requests for terminating sanctions. Defendants have shown that Aguirre and Licon violated one discovery order. Defendants have not shown that less severe sanctions would be ineffective in producing compliance with the discovery rules. (See Mileikowsky, supra, 128 Cal.App.4th at pp. 279-280.) For the same reason, the Court denies Defendants’ alternative request for evidentiary sanctions, which would have the same effect as terminating sanctions.
Instead, the Court orders Aguirre and Licon to comply with the Court’s July 11, 2023 order by May 21, 2025.
Defendants ask the Court to impose monetary sanctions of $3,990.00 on Aguirre and $3,990.00 on Licon. This amount consists of:
$375.00: Dr. Grogan’s per-Plaintiff cancellation fee for the February 28, 2023 examination
$690.00: Fee for Spanish language interpreter for the February 28, 2023 examination
$375.00: Dr. Grogan’s per-Plaintiff cancellation fee for the August 2, 2023 examinations
$740.00: Fee for Spanish language interpreter for the August 2, 2023 examinations
$1,400.00: Four hours of attorney time at a rate of $350.00 per hours to prepare each motion for terminating sanctions
$350.00: One hour of attorney time at a rate of $350.00 to appear at the hearing on the motions for terminating sanctions
$60.00: Filing fee
The Court awards $1,786.66 in sanctions against Aguirre and $1,786.66 in sanctions against Licon. This amount consists of two $375.00 cancellation fees (for February 28, 2023 and August 2, 2023), one-third of the $690.00 Spanish language interpreter fee (for February 28, 2023), one-third of the $740.00 Spanish language interpreter fee (for August 2, 2023), $500.00 in attorney’s fees (based on two hours of attorney time at a reasonable rate of $250.00 per hour), and one filing fee.
CONCLUSION
The Court GRANTS in part and DENIES in part the motion of Defendants Concepcion H. Garcia and County of Los Angeles for terminating sanctions or, in the alternative, evidentiary sanctions and for monetary sanctions against Plaintiff Ernesto Licon Aguirre as follows:
The Court DENIES Defendants’ request for terminating or evidentiary sanctions.
The Court ORDERS Plaintiff Ernesto Licon Aguirre to comply with the Court’s July 11, 2023 order by May 21, 2025.
The Court ORDERS Plaintiff Ernesto Licon Aguirre to pay Defendants Concepcion H. Garcia and County of Los Angeles $1,786.66 by May 28, 2025.
The Court GRANTS in part and DENIES in part the motion of Defendants Concepcion H. Garcia and County of Los Angeles for terminating sanctions or, in the alternative, evidentiary sanctions and for monetary sanctions against Plaintiff Rosario Licon as follows:
The Court DENIES Defendants’ request for terminating or evidentiary sanctions.
The Court ORDERS Plaintiff Rosario Licon to comply with the Court’s July 11, 2023 order by May 21, 2025.
The Court ORDERS Plaintiff Rosario Licon to pay Defendants Concepcion H. Garcia and County of Los Angeles $1,786.66 by May 28, 2025.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file proof of service of this ruling within five days.