Judge: Lisa R. Jaskol, Case: 22STCV16314, Date: 2024-01-23 Tentative Ruling

Case Number: 22STCV16314    Hearing Date: March 18, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On May 17, 2022, Plaintiff David Aguilar (“Plaintiff”) filed this action against Defendants New Legend Inc. (“New Legend”), Dejaun Jerel Williams, and Does 1-20 for general negligence and motor vehicle tort. 

On July 29, 2022, New Legend filed an answer. 

On November 7, 2023, Plaintiff filed a substitution of attorney, substituting himself as a self-represented party in place of his former attorney. 

On January 23, 2024, the Court granted New Legend’s motion to compel Plaintiff to attend his deposition and ordered Plaintiff to attend his deposition and pay New Legend $810.00 in sanctions by February 22, 2024. 

On February 23, 2024, New Legend filed a motion for terminating, evidentiary, or issue sanctions, to be heard on March 18, 2024.  Plaintiff has not filed an opposition. 

Trial is currently scheduled for April 16, 2024. 

PARTY’S REQUEST 

New Legend asks the Court to issue terminating sanctions and dismiss the case or, in the alternative, issue evidentiary or issue sanctions. 

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. 

“(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.) 

          Code of Civil Procedure section 2025.450 provides in part: 

“If [a] party . . . 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 . . . .  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 . . . , 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).) 

A violation of a discovery order supports the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620 (Collison).) 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 

Defendant asks the Court to impose terminating sanctions on Plaintiff and dismiss the case because Plaintiff has not complied with the Court’s January 23, 2024.  Despite the authorities holding that terminating sanctions are not available unless the plaintiff’s violation is preceded a history of abuse, Defendant argues that the Court may impose terminating sanctions where the plaintiff has violated only one discovery order.  

To support this argument, Defendant cites Hartbrodt v. Burke (1996) 42 Cal.App.4th 168 (Hartbrodt), where the plaintiff asserted that production of a tape recording would violate his Fifth Amendment right against self-incrimination.  The trial court referred the issue to a discovery referee, who issued a proposed order compelling production.  The plaintiff “objected to and did not comply with the referee’s proposed order and succeeded in obtaining a de novo review by the trial court of his claim of privilege under the Fifth Amendment.” (Hartbrodt, supra, 42 Cal.App.4th at p. 171.)  “After reviewing the transcript, the pleadings, and the motion papers and allowing extensive oral argument,” the trial court ordered the tape and a transcript produced within 30 days.  (Ibid.)  The plaintiff failed to comply with the order and the defendants moved for terminating sanctions.  (Id. at pp. 171-172.)  The trial court granted the motion and dismissed the case. 

The Court of Appeal affirmed, observing: 

“[Plaintiff’s] vigorous and persistent resistance to [defendants’] efforts to obtain the tape-recorded conversation is vividly demonstrated in this record. [Plaintiff] has willfully obstructed discovery by refusing to produce the tape recording and transcript even after the referee made his proposed order and the trial court reached the same conclusion following a de novo hearing on [plaintiff’s] claim of the privilege against self-incrimination. Given these circumstances, the trial court did not abuse its discretion by dismissing [plaintiff’s] action for disobedience of its order to provide discovery.  [Citation.]  [¶]  The trial court granted [defendants'] motion for dismissal only after [plaintiff] willfully refused to comply with its order for the production of the tape recording and resolutely asserted his privilege against self-incrimination.” (Hartbrodt, supra, 42 Cal.App.4th at p. 175.) 

          Defendant also cites Collision, supra, 21 Cal.App.4th 1611, in which the trial court struck the defendants’ answer as a discovery sanction after the defendants failed to comply with an order compelling further discovery responses. The Court of Appeal affirmed, observing, “What we have here is defendants’ persistent refusal to share with plaintiff the facts underlying their denial of liability and their purported affirmative defenses.”  (Collison, supra, 21 Cal.App.4th at p. 1619.)  The appellate court also chastised the defendants for “evasive and quibbling” discovery responses that “were the obverse of what the code required” and demonstrated “lawyer game playing at its worst.”  (Id. at p. 1617.) 

          This case bears little resemblance to Hartbrodt and Collison.  Plaintiff, who has been without counsel since November 2023, has violated a Court order and thwarted Defendant’s efforts by failing to attend his deposition or pay monetary sanctions.  The violation is sanctionable but does not, without more, warrant terminating sanctions. 

          Although Defendant’s motion initially requests evidentiary or issue sanctions as an alternative to terminating sanctions, Defendant does not elaborate on the nature of evidentiary or issue sanctions it is seeking.  Defendant does not request monetary sanctions.  In the motion’s conclusion, Defendant requests only terminating sanctions. 

          Having determined that terminating sanctions are not appropriate, the Court denies the motion without prejudice. 

CONCLUSION

The Court DENIES without prejudice Defendant New Legend Inc.’s motion for terminating sanctions against Plaintiff David Aguilar. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file a proof of service of this ruling with the Court within five days.