LEGAL STANDARD  

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. 

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  “(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.” 

(Code Civ. Proc., § 2023.030, subds. (a), (d).) 

A violation of a discovery order supports 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 (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.) 

DISCUSSION

On June 12, 2023, the Court granted Defendant’s motion to compel Plaintiff’s deposition and ordered Plaintiff to appear for a deposition within 30 days of the hearing on the motion.  The Court also granted Defendant’s request for sanctions and ordered Plaintiff to pay Defendant $510.00 in sanctions within 30 days of the hearing on the motion. 

On June 21, 2023, Defendant served a deposition notice setting Plaintiff’s deposition on July 14, 2023.  Plaintiff did not appear at the July 14 deposition and did not communicate with Defendant to schedule a different, mutually agreeable date. 

The Court grants the motion for terminating sanctions because the Court does not believe that a less severe sanction would produce compliance with the discovery rules. 

Defendant requests monetary sanctions of $1,833.30 based on 3 hour of attorney’s work at a rate of $200.00 per hour, a non-appearance fee of $1,171.65, and 1 $61.65 filling fee. 

The Court awards $1,433.30 based on based on 1 hour of attorney’s work at a rate of $200.00 per hour, a non-appearance fee of $1,171.65, and 1 $61.65 filling fee.  (See Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c), 2023.010, subd. (g).) 

CONCLUSION 

The Court GRANTS Defendant Concepcion Flores Garcia’s motion to dismiss Plaintiff Jeffrey Buteyn’s complaint.  The Court dismisses the complaint filed by Plaintiff Jeffrey Buteyn with prejudice under Code of Civil Procedure section 2023.030, subdivision (d)(3). 

The Court GRANTS Defendant Concepcion Flores Garcia’s request for sanctions. Plaintiff Jeffrey Buteyn is ordered to pay $1,433.30 in sanctions to Defendant within 30 days of the hearing on the motion. 

Defendant is ordered to give notice of this ruling.