Judge: Lisa R. Jaskol, Case: 23STCV25455, Date: 2025-05-15 Tentative Ruling
Case Number: 23STCV25455 Hearing Date: May 15, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On October 18, 2023, Plaintiff Brett Baker (“Plaintiff”) filed this action against Defendants Express Delivery Service, Rubnell Gaitan (“Gaitan”), and Does 1 through 25 for motor vehicle tort and general negligence.
On October 20, 2023, Plaintiff amended the complaint to replace the incorrect name Express Delivery Service with Defendant’s correct name, Express Delivery Service LLC (“Express”).
On July 17, 2024, Defendants Express Delivery Service, LLC and Rubnell Gaitan (“Defendants”) filed an answer.
On March 17, 2025, Plaintiff amended the complaint to include Defendant T. Force Logistics, Inc. as Doe 1.
Trial is scheduled for August 14, 2025.
B. These motions
On February 26, 2025, Plaintiff filed a motion to compel the deposition of Express’s person most qualified and for sanctions. The motion was set for hearing on May 5, 2025. On April 22, 2025, Defendants filed an opposition. On April 28, 2025, Plaintiff filed a reply. The Court continued the hearing to May 15, 2025.
On March 18, 2025, Plaintiff filed a motion for monetary, evidentiary, and issue sanctions. The motion was set for hearing on May 15, 2025. On May 2, 2025, Defendants filed an opposition.
PARTIES’ REQUESTS
Plaintiff asks the Court (1) to compel the deposition of Express’s person most qualified and to award sanctions and (2) to award monetary, evidentiary, and issue sanctions.
Defendants
ask the Court to deny the motions.
LEGAL STANDARD
A. Deposition of person most qualified
Code of Civil Procedure section 2025.450 provides in part:
“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
“(b) A motion under subdivision (a) shall comply with both of the following:
“(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
* * *
(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).)
B. Discovery sanctions
1. Monetary, issue, evidence, 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.)
2. 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”); see Victor Valley Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, 1159 [trial court’s order precluding district from introducing evidence to defend against negligence claim was “tantamount to terminating sanctions”].)
I. Plaintiff’s motion to compel the deposition of Express’s person most qualified
A. Plaintiff’s contentions
On February 13, 2025, Plaintiff noticed the deposition of Express’s person most knowledgeable, setting the deposition on February 28, 2025.
On February 20, 2025, Express served an objection to the deposition notice, stating that the deposition was unilaterally noticed. Express also objected to the document request attached to the deposition notice, asserting the request (1) called for documents that were irrelevant and had no tendency to lead to the discovery of admissible evidence, (2) invaded “the party’s right of privacy,” (3) was overbroad, (4) was oppressive and burdensome because it was vague, ambiguous and unintelligible, (5) called for documents available to all parties equally, (6) was “previously asked and answered,” and (7) sought documents protected by the attorney client privilege and work product doctrine.
In response to the objections, Plaintiff’s counsel asked Defendants’ counsel to provide alternative dates. According to Plaintiff, Defendants’ counsel did not respond to the request. Express’s person most knowledgeable did not appear at the February 28, 2025 deposition and Plaintiff took a certificate of nonappearance.
B. Defendants’ contentions
In their opposition, Defendants argue the Court should deny Plaintiff’s motion because (1) Express served a valid objection to the deposition notice and (2) Plaintiff did not provide a meet-and-confer declaration.
C. Analysis
In Plaintiff’s reply, Plaintiff states that Express produced a person most qualified for a deposition on March 10, 2025, but Express “wrongfully terminated” the deposition. (Reply p. 2.) However, Plaintiff did not provide a declaration or other evidence to support the assertion that Express improperly terminated the deposition.
The appearance of Express’s person most qualified for a deposition on March 10, 2025 rendered Plaintiff’s motion moot. In addition, because briefing was closed, Express could not file a response to the assertions in Plaintiff’s reply papers, making it inappropriate to address Plaintiff’s contentions about the March 10, 2025 deposition in ruling on this motion. The Court therefore denies the motion without prejudice.
II. Plaintiff’s motion for monetary, evidentiary, and issue sanctions
Arguing that Defendants have violated their discovery obligations, Plaintiff asks the Court (1) to impose monetary sanctions of $5,000 on Defendants and their counsel, (2) to impose evidentiary sanctions preventing Defendants from introducing any documents at trial that were not previously produced in response to Plaintiff’s discovery requests, and (3) to impose issue sanctions by “finding that liability is established against Defendants . . . .” (Motion p. 3.)
To support the motion, Plaintiff points to the discovery disputes addressed in the Court’s October 30 and 31, 2024 orders. On October 30, 2024, the Court denied as moot (1) Plaintiff’s motion to deem admitted matters specified in requests for admission served on Express, (2) Plaintiff’s motion to compel Express’s responses to request for production of documents and things, and (3) Plaintiff’s motion to compel Express’s responses to interrogatories. On October 31, 2024, the Court denied as moot (1) Plaintiff’s motion to deem admitted matters specified in requests for admission served on Gaitan, (2) Plaintiff’s motion to compel Gaitan’s responses to request for production of documents and things, and (3) Plaintiff’s motion to compel Gaitan’s responses to interrogatories. The Court imposed monetary sanctions on Express, Gaitan, and their counsel.
Plaintiff also points to his efforts to depose Express’s person most qualified, discussed in Part I of this order.
The Court denies Plaintiff’s motion for monetary, evidentiary, and issue sanctions. The Court previously imposed monetary sanctions on Defendants and their counsel on October 30 and 31, 2025 based on their failure to serve timely discovery responses. Plaintiff does not contend that Defendants failed to pay these sanctions. Although Plaintiff appears to contend that Defendants violated the Court’s orders by withholding documents which the Court had ordered Defendants to produce (see Daneshrad dec. ¶ 8), the Court has not adjudicated this contention.
With respect to Plaintiff’s contentions concerning the deposition of Express’s person most qualified, Plaintiff has admitted that a deposition took place on March 10, 2025. Plaintiff’s counsel submitted a declaration stating: (1) “At the PMK deposition [on March 10, 2025], Defendant’s witness admitted under oath to possessing Mr. Gaitan’s employment records, background check, DMV report, and incident reports, none of which had been produced” and (2) “Despite multiple meet-and-confer efforts, Defendants have refused to provide the missing documents or reschedule the deposition.” (Daneshrad dec. ¶¶ 9-10.) Counsel's declaration does not, however, support Plaintiff’s contention that Defendants improperly terminated the March 10, 2025 deposition.
Plaintiff has failed to show that Defendants violated a court order or that additional sanctions are appropriate.
CONCLUSION
The Court DENIES Plaintiff Brett Baker’s motion for monetary, evidentiary, and issue sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.