Judge Lynne M. Hobbs, Case Number: 20STCV32769, Date: 2023-11-01 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV32769, Date: 2023-11-01 Tentative Ruling

Case Number: 20STCV32769 Hearing Date: December 11, 2023 Dept: 30

MADEEHA RASUL vs JACK DOUGLAS BARNES

Motion for Terminating Sanctions

TENTATIVE

Defendant’s motion for terminating sanctions is DENIED. Defendant’s request for sanctions is GRANTED. Plaintiff and counsel of record Liana Ter-Oganesyan are ordered to pay sanctions in the amount of $471.65, jointly and severally, within 20 days of this order.

Background¿

This is an action for negligence arising from a vehicle collision which took place in February 2019. Plaintiff Madeeha Rasul filed her Complaint against Defendant Jack Douglas Barnes on August 27, 2020.¿

On October 9, 2023, Defendant filed a Motion for Terminating Sanctions. No

opposition has been filed.

On November 1, 2023, the Court continued the hearing on this motion after Plaintiff argued that the parties had scheduled her medical examinations.

On December 7, 2023, Defendant filed a supplemental declaration.

On December 8, 2023, Plaintiff filed an untimely supplemental declaration.

Legal Standard¿

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)¿ Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.¿ (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)¿ “[A] penalty as severe as dismissal or default is not authorized where

noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”¿ (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)¿ 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.¿

¿(Code Civ. Proc., § 2023.030, subd. (d).)¿

Discussion¿

Defendant moves for terminating sanctions, dismissing the action against Defendant. Additionally, Defendant moves for monetary sanctions in the amount of $1,701.65 against Plaintiff and counsel of record, Liana Ter-Oganesyan, Esq

Defendant served two Demands for a Medical Examination in March of 2022, with two separate doctors, scheduled for examinations to take place in May of 2022. Plaintiff failed to appear at these examinations. Defendant attempted to meet and confer with Plaintiff about future examinations, with no response from Plaintiff. Defendant filed a motion to compel medical examinations, which was granted on May 26, 2023. (5/26/2023 Minute Order.) This Court ordered Plaintiff to sit for the two examinations within 20 and 60 days. (Id.) The Court also ordered Plaintiff to pay sanctions in the amount of $1,401.65 within 20 days. (Id.) However, Plaintiff failed to sit for both exams. Defendant contacted Plaintiff’s counsel regarding these failed appearances and was informed that Plaintiff lives in Northern California. (Nguyen Decl., ¶ 18; Exh. N.) To date, Plaintiff failed to sit for her first and second IME or pay any of the sanctions imposed by this Court. (Nguyen Dec., ¶ 19.)

On November 1, 2023, the hearing on this motion was continued due to Plaintiff’s representation that the parties had scheduled her IMEs for December 7, 2023. However, the Court noted it would consider monetary sanctions.

First, the Court notes that whether Defendant complied with the Court’s order to pay monetary sanctions is not relevant to the determination of whether terminating sanctions¿should be imposed. A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿(Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, CCP §§680.010, et seq. (Id. at 615.)

Next, the Court notes that Defendant filed a declaration stating that she Plaintiff has appeared for her IMEs. As such, the Court denies the motion for terminating sanctions.

As for monetary sanctions, the Court finds they are warranted. The Court notes that Plaintiff’s counsel filed an untimely supplemental declaration. The Court stated on November 1, 2023 that supplemental declarations must be filed no later than December 7, 2023. Plaintiff filed hers on December 8, 2023. As such, the Court exercises its discretion to not consider the untimely declaration. In any event, even if the Court did consider the untimely supplemental declaration, it would not change the Court’s ruling as to the imposition of monetary sanctions. While Plaintiff’s counsel argues that she has been meeting and conferring with Defendant in order to set the IMEs, it is undisputed that Defendant has been trying to take these examinations since March of 2022, well over a year and a half. Plaintiff further provides that her client lives in Northern California, but Plaintiff’s counsel gave Defendant a Beverly Hills address for purposes of the examination in her discovery responses. Moreover, Plaintiff’s counsel has not shed light as to why this address was provided -- neither in this motion, nor in the motion to compel the IMEs, as no oppositions have been filed. As such, this cannot be used an excuse to justify delaying the discovery process for this long. If it was Plaintiff’s position that the examination was not close to her residence, she should have filed an opposition to the motion to compel IMEs to assert this argument in order for the Court to determine the proper outcome. As a result, because the Court had ordered these examinations to take place 20 and 60 days from the Court’s May 26, 2023 order, and they have not taken place within the prescribed time, the Court finds monetary sanctions against Plaintiff and her counsel of record Liana Ter-Oganesyan are warranted. However, the amount of sanctions imposed will be reduced due to the simplicity of the emotion and lack of opposition. As such, Plaintiff and counsel of record are ordered to pay sanctions in the amount of $471.65 ($205 per hour for two hours, plus $61.65 filing fee), jointly and severally, within 20 days of this order.