Judge Lynne M. Hobbs, Case Number: 22STCV09956, Date: 2023-10-10 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV09956, Date: 2023-10-10 Tentative Ruling

Case Number: 22STCV09956 Hearing Date: January 2, 2024 Dept: 30

JUAN MANUEL AGUAYO, et al. vs ANDREA ROSEANN PONSCHKE

TENTATIVE

Defendant’s unopposed motion for terminating sanctions dismissing Plaintiff Santos Alberto Ortiz’s case is GRANTED. Plaintiff’s complaint against Defendant Andrea Ponschke is dismissed with prejudice.

Legal Standard

"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).)

CCP section 2025.450(h) states: 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 against that party deponent. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction against that deponent, 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(h).)

Discussion

Defendant moves for terminating sanctions against Plaintiff, Santos Alberto Ortiz, based on Plaintiff’s failure to comply with the Court’s October 10, 2023 order, which ordered Plaintiff to appear for deposition.

On October 10, 2023, this Court granted Defendant’s motion to compel Plaintiff’s deposition, and ordered Plaintiff to appear for deposition within 30 days. (10/10/2023 Minute Order.) Plaintiff’s counsel was present at the hearing. (Id.) Further, notice of the ruling was sent to Plaintiff’s counsel the next day. (10/11/2023 Notice of Ruling.)

After the Court order, Defendant noticed Plaintiff’s deposition for October 30, 2023. (Morse Decl., ¶15; Exh. B.) However, Plaintiff still failed to appear for deposition, even though his counsel was present, and Defendant obtained a certificate of non-appearance. (Id., ¶¶ 16-17; Exh. C.)

Plaintiff has been engaging in discovery abuse. Defendant has attempted to take Plaintiff’s deposition numerous times, yet Plaintiff failed to comply with his discovery obligations each time. Further, Plaintiff has also failed to appear for deposition, even after this Court has ordered him to appear. Based on Plaintiff’s failure to comply with the Court’s Order, the Court finds that terminating sanctions are warranted in this instance. Plaintiff has failed to explain why he has been unable to comply with the outstanding court order, and as a result, the Court finds that Plaintiff has willfully misused the discovery process by this lack of diligence. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 [“Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.”]) Also, Plaintiff’s failure to comply has been detrimental to Defendant’s ability to prepare for trial, which is currently set for March 28, 2024. As such, because there is a willful history of discovery abuse after numerous attempts to obtain such discovery, to the detriment of Defendant, the motion for terminating sanctions is granted.