Judge: Lisa R. Jaskol, Case: 22STCV37356, Date: 2023-11-14 Tentative Ruling
Case Number: 22STCV37356 Hearing Date: March 5, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On November 29, 2022, Plaintiff Matthew Adams (“Plaintiff”) filed this action against Defendants Irene Kim, Richard Kim, and Does 1-50 for motor vehicle tort and general negligence.
On January 17, 2023, Defendants Irene Kim and Richard Kim (“Defendants”) filed an answer.
On March 6, 2023, the Court found that this case (22STCV37356) and case number 22STCV34043 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 22STCV34043 became the lead case.
On November 29, 2023, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel.
On February 7, 2024, Defendants filed a motion for terminating sanctions to be heard on March 5, 2024. Plaintiff has not filed an opposition.
The trial is currently set for May 28, 2024.
PARTIES’ REQUESTS
Defendants ask the Court to issue terminating and monetary sanctions against Plaintiff.
LEGAL STANDARD
Code of Civil Procedure section 2025.450, subdivision (h), provides in part:
“If [a] party or party-affiliated deponent . . . 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).)
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 January 8, 2024, the Court granted Defendants’ motion to compel Plaintiff to attend his deposition and ordered Plaintiff to appear for a deposition on January 15, 2024 at 2:00 p.m. or at another date and time to which the parties agreed but no later than 30 days after January 8, 2024. The Court also imposed monetary sanctions on Plaintiff.
Plaintiff did not comply with the Court’s January 8, 2024 order. On January 15, 2024, Defendants’ counsel took a certificate of non-appearance when Plaintiff did not appear for his deposition.
Defendants have not shown that Plaintiff violated any other court orders. Plaintiff’s failure to comply with one court order does not establish the willful persistence in disobeying court orders that would justify terminating sanctions. Therefore, the Court denies Defendants’ request for terminating sanctions.
Instead, the Court orders Plaintiff to appear for a deposition within 30 days of the hearing on this motion. If Plaintiff fails to appear or fails to make a good faith effort to schedule the deposition by the deadline, Defendants may file another motion for terminating sanctions.
Defendants request monetary sanctions of $585.00 based on three hours of attorney time at a rate of $175.00 per hour and one $60.00 filing fee. Counsel spent one hour drafting the motion and anticipated spending one hour to prepare a reply to any opposition and one hour to attend the hearing.
The Court awards sanctions of $410.00 based on two hours of attorney time and one filing fee.
CONCLUSION
The Court DENIES the motion for terminating sanctions filed by Defendants Irene Kim and Richard Kim.
The Court orders Plaintiff Matthew Adams to appear for a deposition within 30 days of the hearing on the motion. Defendants Irene Kim and Richard Kim are ordered to meet and confer with Plaintiff to select an appropriate time and place and to make all necessary arrangements to take Plaintiff's deposition by this deadline.
The Court GRANTS the request of Defendants Irene Kim and Richard Kim for monetary sanctions and orders Plaintiff Matthew Adams to pay Defendants Irene Kim and Richard Kim $410.00 in sanctions within 30 days of the hearing on the motion.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file a proof of service of this ruling with the Court within five days.