Judge: Lynne M. Hobbs, Case: 20STCV48745, Date: 2023-09-19 Tentative Ruling

Case Number: 20STCV48745    Hearing Date: April 2, 2024    Dept: 30

MICHAEL MOORE vs MARY LOU DORGALLI, et al.

TENTATIVE

Defendants/Cross-Complainants Mary Lou Dorgalli, and Sam Dorgalli’s motion for terminating sanctions is DENIED.

Defendants/Cross-Complainants Mary Lou Dorgalli, and Sam Dorgalli’s request for monetary sanctions is DENIED for inadequate notice.

Moving party is ordered to give notice.

Background

On December 22, 2020, Plaintiff Michael Moore filed a complaint against Defendants Mary Lou Dorgalli, and Sam Dorgalli, alleging causes of action for general and motor vehicle negligence, stemming from a vehicle collision that occurred on March 12, 2019.

On July 16, 2021, Defendants/Cross-Complainants Mary Lou and Sam Dorgalli filed a cross-complaint against Cross-Defendant Los Angeles County Metropolitan Transportation Authority (“LACMTA”).

On September 23, 2021, LACMTA filed a cross-complaint against Defendants/Cross-Defendants Mary Lou and Sam Dorgalli (together, “Dorgalli”).

On October 11, 2023, this Court granted Dorgalli’s motion to compel the deposition of LACMTA’s Person Most Knowledgeable (PMK) and imposed sanctions against LACMTA.

On January 8, 2024, Dorgalli filed this motion terminating sanctions. On January 19, 2024, LACMTA filed an opposition. On January 26, 2024, Dorgalli filed a reply.

Legal Standard

CCP section 2023.030 provides that, "[t]o the extent authorized by the chapter governing any particular discovery method..., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose... [monetary, evidence, and terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process...." CCP section 2023.010 provides that "[m]issues of the discovery process include, but are not limited to, the following:... (d) Failing to respond or to submit to an authorized method of discovery.... (g) Disobeying a court order to provide discovery...."

"The trial court may order a terminating sanction for discovery abuse 'after considering the totality of the circumstances: [the] 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 the discovery.'" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246).) "Generally, '[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.'" (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

"Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders." (Id. (citing Lang, supra, 77 Cal.App.4th at pp. 1244- 1246); see, e.g., Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal App 3d 481, 491 (disapproved on other grounds in Garcia v. McCucchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

Discussion

Dorgalli moves for Terminating Sanctions against Defendant LACMTA on the ground that LACMTA failed to comply with the Court's orders compelling it to produce documents at its PMK’s Deposition.

On October 11, 2023, this Court granted Dorgalli’s motion to compel LACMTA’s the deposition of LACMTA’s Person Most Knowledgeable (PMK) and imposed sanctions against LACMTA. (10/11/2023 Minute Order.) LACMTA ultimately produced two witnesses to testify: Shonda Breland on November 20, 2023, and Scott Connor on November 27, 2023. Dorgalli argues that LACMTA deliberately ignored the Order, did not produce documents, produced witnesses not fully prepared to address the categories of knowledge and failed to pay the sanctions ordered by the Court.

In opposition LACMTA argues that its counsel has been more than willing to produce additional witnesses to fulfill the role of any PMK category that Defendants believe is not being covered.

First, 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.)

Second, the Court order did not require the document production. PMKs were not produced so compelling a document production would have been premature. A request for production of documents in a deposition notice merely requires that the documents identified are to be produced by the deponent at the deposition. (CCP § 2025.220(a)(4).) Thus, a request for documents in conjunction with a deposition notice is not the equivalent of a request for production of documents under Code of Civil Procedure section 2031.010 et seq. Rather, if documents were not produced at the deposition, Dorgalli may then move to compel Defendant to produce the documents. (See CCP § 2025.480; see also CCP §2025.460(e).)

Next, as to the witnesses to testify as to categories 1-5, LACMTA argues that they have already produced two witnesses as PMKs, and have attempted to ascertain which PMKs are missing, but Dorgalli’s counsel fails to clarify the terms themselves. On February 14, 2024, LACMTA provided dates for the deposition of the last remaining PMK. Nevertheless, the parties still cannot agree as to the extent of the PMKs and LACMTA has filed a motion for a discovery referee.

The Court finds terminating sanctions are not warranted. Generally, '[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.'" (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).) It appears LACMTA is attempting in good faith to comply with the Court order, but the parties are at an impasse as to which categories still need PMKs, and to what extent the PMK is to testify. As such, the Court finds there is no willful violation preceded by a history of abuse.

As for monetary sanctions, Dorgalli requests $2,535 in sanctions but fails to request sanctions in the notice of motion. Thus, the request is denied for inadequate notice. (See CCP § 2023.040.)

Conclusion

Based on the foregoing, Defendants/Cross-Complainants Mary Lou Dorgalli, and Sam Dorgalli’s motion for terminating sanctions is DENIED.

The request for monetary sanctions is DENIED.