Judge Lynette Gridiron Winston, Case Number: 23PSCV00435, Date: 2025-03-05 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00435, Date: 2025-03-05 Tentative Ruling

Plaintiff’s Motion for Orders: (1) Striking the Answer of Defendant Shiyi Zhang; (2) Entering the Default of Defendant Shiyi Zhang; (3) Awarding Sanctions Against Defendant Shiyi Zhang in the Amount of $4,935.00; and (4) Awarding Sanctions Against MacDonald & Cody, LLP in the Amount of $1,867.00

The Court will hear from counsel regarding Zhang’s participation in this action.

The Court GRANTS Plaintiff’s request for monetary sanctions against Defendant Zhang in the reduced amount of $2,060.00. Zhang must pay said monetary sanctions to counsel for Plaintiff within 30 days of the Court’s order. The Court DENIES Plaintiff’s request for monetary sanctions against Macdonald & Cody LLP.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a personal injury action. On February 14, 2023, plaintiff Shanhui Zhu (Plaintiff) filed this action. On November 16, 2023, Plaintiff filed the operative First Amended Complaint against defendants Shiyi Zhang (Zhang), Yuan Yin Fu, and Does 1 to 100, alleging causes of action for negligence, negligence per se, and fraudulent transfer.

On January 7, 2025, Plaintiff moved to strike the answer of Defendant Zhang and enter default against Defendant Zhang. The motion is unopposed.

If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, 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.

The court is authorized, after notice and an opportunity for hearing, to impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, and contempt. (Code Civ. Proc., §¿2023.030, subds. (a)-(e).)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. [Citation.]” (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992 (Doppes); see J.W. v. Watchtower Bible and Tract Society of New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.) If a lesser sanction fails to curb misuse, a greater sanction is warranted. (Doppes, supra, 174 Cal.App.4th at p. 992.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed what is required to protect the interests of the party entitled to but denied discovery.’ [Citation.]” (Id.) “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.” (Id., quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Creed-21 v. City of Wildomar¿(2017) 18 Cal.App.5th 690, 702, quoting Doppes and Mileikowsky.)

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the detriment to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes, supra, 174 Cal.App.4th at p. 992.)

The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.)

Code of Civil Procedure section 2023.010, subdivisions (d) and (f), provide that a misuse of the discovery process includes, but is not limited to, “[f]ailing to respond or to submit to an authorized method of discovery” and “[m]aking an evasive response to discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (f).)

Zhang filed her opposition on February 21, 2025, which was untimely. (Code Civ. Proc., § 1005, subd. (b).) But, the Court notes that Plaintiff did not raise this issue in the reply and does not otherwise appear to have been prejudiced by the late filing. Therefore, the Court will still consider Zhang’s opposition, but nevertheless admonishes Zhang to comply with the requirements of the Code of Civil Procedure going forward. (See ibid.; Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

Plaintiff asks the Court to strike the answer of Defendant Zhang and enter default against Zhang for Zhang’s failure to appear for deposition again, this time in violation of the Court’s October 2, 2024 order compelling Zhang’s attendance at a deposition within 30 days of the Court’s order. To be more precise, Plaintiff seeks terminating sanctions based on Zhang’s failure to appear at a court-ordered deposition. (See Code Civ. Proc., §§ 2023.030, subd. (d), 2025.450, subd. (h).) Plaintiff indicates having attempted to confirm Zhang’s availability for deposition before serving the notice, but never receiving a confirmation from Zhang’s counsel as to Zhang’s availability. (Mayo Decl., ¶¶ 5-8.) Plaintiff noticed the deposition for October 29, 2024, i.e., the date in which Zhang’s counsel indicated they would be available for Zhang’s deposition. (Mayo Decl., ¶ 9.) Plaintiff indicates that Zhang did not serve any written objections, move for a protective order, or move to quash the deposition. (Mayo Decl., ¶¶ 10-11.) Plaintiff states that after serving the deposition notice, Zhang’s counsel did not communicate Zhang would not appear for the deposition. (Mayo Decl., ¶ 12.) Plaintiff then indicates that neither Zhang nor her counsel appeared for the deposition on October 29, 2024. (Mayo Decl., ¶ 13, Ex. 7.)

In opposition, Defendant Zhang’s counsel indicates that they have recently been able to locate and communicate with Defendant Zhang, and contends that substantive relief should not be ordered against Zhang without her knowledge. Zhang contends she should be afforded an opportunity to fully participate in opposing Plaintiff’s motion. Zhang’s counsel requests the Court provide more time so that they can locate and communicate with Zhang during a tentatively scheduled call for February 20, 2025. Zhang contends Plaintiff presents no authority that provides Plaintiff may recoup costs for making the motion, which is requesting an order of default and does not request any orders with respect to civil discovery. Zhang also contends that her counsel’s conduct does not warrant monetary sanctions, as her counsel advised Plaintiff’s counsel that they were not in communication with Zhang. Zhang further contends Plaintiff’s counsel knew that Zhang was unavailable for the October 29, 2024 deposition and not in contact with her counsel, but Plaintiff’s counsel unilaterally scheduled that deposition anyway, knowing that Zhang would not appear.

The Court will hear from counsel for Defendant Zhang before deciding if Plaintiff is entitled to terminating sanctions against Defendant Zhang at this time. (Code Civ. Proc., § 2025.450, subd. (h).)[1] While the Court agrees Zhang’s counsel has presented conflicting statements regarding whether they located and spoke with Zhang on February 20, 2025, the Court is not certain if Zhang will be participating in this action once again, which is what the Court is most concerned about here. (See Ogunnubi Decl., ¶¶ 4-7.) If Zhang is participating in this action again, the Court would find terminating sanctions excessive at this stage of the litigation. (See Doppes, supra, 174 Cal.App.4th at p. 992.) However, if Zhang continues to fail to comply with the Court’s orders and with her discovery obligations, the Court will issue terminating sanctions.

Based on the foregoing, the Court will hear from counsel regarding Zhang’s participation in this action.

However, Defendant Zhang is mistaken regarding Plaintiff’s request for monetary sanctions, as Plaintiff brought his motion under Code of Civil Procedure sections 2023.030, subdivision (d), and section 2025.450, subdivision (h), the latter of which authorizes recovery of monetary sanctions. (Code Civ. Proc., §§ 2023.030, subd. (d), 2025.450, subd. (h).) The Court finds Plaintiff is entitled to monetary sanctions against Defendant Zhang for her failure to appear for the October 29, 2024 deposition, as the Court clearly ordered Zhang to appear for deposition within 30 days of its October 2, 2024 order. (Order re Tentative Ruling (10/2/24).) Therefore, the Court GRANTS Plaintiff’s request for monetary sanctions against Defendant Zhang, but in the reduced amount of $2,060.00, comprised of 3.0 hours preparing the motion and 1.0 hour appearing at the hearing on the motion, for a total of four hours, multiplied by the reduced hourly rate of $500.00, plus the $60.00 filing fee. Zhang must pay said monetary sanctions to counsel for Plaintiff within 30 days of the Court’s order.

But, the Court DENIES the request for monetary sanctions against Macdonald & Cody LLP, as a law firm is not a person or an attorney, nor is it a party to this action. (See Code Civ. Proc., § 2023.040, italics added [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought…”].) Plaintiff should have identified the attorneys at Macdonald & Cody LLP against whom the sanctions were sought. Also, while the Court agrees with Plaintiff that Defendant Zhang’s counsel should have communicated more with Plaintiff before the October 29, 2024 deposition, Plaintiff’s counsel could have reasonably inferred from Zhang’s counsel’s lack of confirmation regarding Zhang’s availability for deposition that they were not going to appear. (See Mayo Decl., ¶¶ 8, 12.) The Court also finds that the bulk of the fault here lies with Defendant due to her failure to communicate with her counsel and otherwise participate in the discovery process. (Ogunnubi Decl., ¶¶ 4-7.)

The Court will hear from counsel regarding Zhang’s participation in this action.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] While Plaintiff styled this motion as a motion to strike, it really is a motion for terminating sanctions, as it seeks to strike Zhang’s answer and enter default due to her failure to comply with discovery obligations. (See Notice, p. 2; Code Civ. Proc., §§ 2023.030, subd. (d), 2025.450, subd. (h).)