Judge: Lisa R. Jaskol, Case: 22STCV03850, Date: 2024-12-10 Tentative Ruling
Case Number: 22STCV03850 Hearing Date: December 10, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On February 1, 2022, Plaintiff Yeon Su Kim (“Plaintiff”) filed this action against Defendants Bella Assets LLC (“Bella”) and Does 1-20 for general negligence and premises liability.
On February 8, 2023, Plaintiff amended the complaint to include Defendants Bada, LLC (“Bada”) as Doe 1 and Hyun Suk Cho (“Hyuk Suk Cho”) as Doe 2.
On February 9, 2024, Plaintiff amended the complaint to include Defendant Yoon Jung Cho as Doe 3.
On May 24, 2023, Bella and Bada filed an answer.
On May 16, 2024, the Court dismissed Bada without prejudice at Plaintiff’s request.
On August 9, 2024, the Court granted Plaintiff’s unopposed motion to compel the deposition of Bella’s person most knowledgeable and for production of documents. The Court ordered Bella to produce a person or persons most knowledgeable to testify about the subjects listed in Plaintiff’s deposition notice and to produce responsive documents by September 8, 2024. The Court also ordered Bella and its counsel to pay Plaintiff $750.00 in sanctions by September 8, 2024.
On October 7, 2024, Plaintiff filed a motion for terminating sanctions or in the alternative issue sanctions against Bella and for monetary sanctions. The motion was set for hearing on December 10, 2024. On November 27, 2024, Bella filed an opposition and request for sanctions. On December 3, 2024, Plaintiff filed a reply.
PARTIES’ REQUESTS
Plaintiff asks the Court to impose terminating sanctions or, in the alternative, issue sanctions on Bella and to impose monetary sanctions on Bella.
Bella asks the Court to deny the motion and impose sanctions on Plaintiff.
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
Plaintiff asks the Court to impose terminating sanctions on Bella and strike Bella’s answer or, in the alternative, impose issue sanctions because Bella failed to comply with the Court’s August 9, 2024 order to produce its person most qualified for deposition, produce documents, and pay sanctions. To facilitate settlement discussions, Plaintiff extended the September 8, 2024 deadline for Bella to comply with the Court’s August 9, 2024 order by two weeks, making the deadline September 22, 2024. (Axtell dec. ¶12 & exh. 3.) However, Plaintiff argues, Bella has still not complied with the order.
In opposition, Bella argues Plaintiff’s case is frivolous and Bella has already provided Plaintiff all available information. Bella does not address its failure to comply with the Court’s August 9, 2024 order.
The Court denies Plaintiff’s request for terminating sanctions. Plaintiff has shown that Bella violated one discovery order. Plaintiff 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.)
The Court also denies Plaintiff’s request for issue sanctions because an order that Bella owed Plaintiff a duty of care and breached that duty is the equivalent of striking Bella's answer.
Instead, the Court orders Bella to comply with the Court’s August 9, 2024 order by December 24, 2024. The Court orders Plaintiff to take all necessary steps and make all reasonable arrangements to ensure that Bella’s person most knowledgeable can attend a deposition by December 24, 2024.
Plaintiff asks the Court to award $750.00 in monetary sanctions based on 3 hours of attorney time to prepare the moving papers at a rate of $250.00 per hour. The Court grants the request and orders Bella and its counsel to pay Plaintiff $750.00 by January 9, 2025.
CONCLUSION
The Court DENIES Plaintiff Yeon Su Kim’s motion for terminating sanctions or, in the alternative, issue sanctions against Defendant Bella Assets LLC.
The
Court ORDERS Defendant Bella Assets LLC to produce its person or persons most
knowledgeable to testify about the subjects listed in Plaintiff Yeon Su Kim’s
deposition notice and to produce responsive documents by December 24, 2024.
The Court GRANTS Plaintiff Yeon Su Kim’s request for sanctions and ORDERS Defendant Bella Assets LLC and its counsel to pay Plaintiff Yeon Su Kim $750.00 by January 9, 2025.
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.