Judge: Lisa R. Jaskol, Case: 21STCV31743, Date: 2024-12-10 Tentative Ruling
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Case Number: 21STCV31743 Hearing Date: December 10, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On August 26, 2021, Plaintiff Malvina Mkchyan (“Plaintiff”) filed a complaint against Defendants Margaret Mary Lewis (“Defendant”) and Does 1-50 for motor vehicle tort and general negligence.
On May 15, 2023, Defendant filed an answer.
On August 13, 2024, the Court granted Defendant’s unopposed motion to compel Plaintiff’s attendance and testimony at a deposition and for sanctions. The Court ordered Plaintiff to appear and testify at a deposition and to pay Defendant $1,191.65 in sanctions by September 12, 2024.
On October 10, 2024, Defendant filed a motion for terminating sanctions. The motion was set for hearing on December 10, 2024. On November 21, 2024, Defendant filed a supplemental declaration supporting the motion. On December 9, 2024, Plaintiff’s counsel filed a late declaration opposing the motion, which the Court has not considered.
PARTY’S REQUEST
Defendant asks the Court to impose terminating sanctions on Plaintiff and dismiss the case.
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 comply with order compelling deposition
Code of Civil Procedure section 2024.450, subdivision (h), provides:
“If [a] party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production [at a deposition], 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) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.”
(Code Civ. Proc., § 2025.450, subd. (h).)
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
Defendant asks the Court to impose terminating sanctions on Plaintiff and dismiss the case because Plaintiff has not complied with the Court’s August 13, 2024 order to appear and testify at a deposition and to pay Defendant $1,191.65 in sanctions by September 12, 2024.
The Court denies Defendant’s request for terminating sanctions. Defendant has shown that Plaintiff violated one discovery order. Defendant has 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.)
Instead, the Court orders Plaintiff to comply with the Court’s August 13, 2024 order by December 24, 2024. The Court orders Defendant to make all reasonable arrangements to ensure that Plaintiff can attend a deposition by December 24, 2024.
CONCLUSION
The Court DENIES Defendant Margaret Mary Lewis’s motion for terminating sanctions against Plaintiff Malvina Mkchyan.
The Court ORDERS Plaintiff Malvina Mkchyan to appear and testify at a deposition and to pay Defendant Margaret Mary Lewis $1,191.65 in sanctions by December 24, 2024.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file proof of service of this ruling within five days.