Judge Mark E. Windham, Case 19STLC03652 2023-05-18 Tentative Ruling

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Defendant Carolina Delgado-Bailon’s Motion for Terminating Sanctions is GRANTED. THE COURT DISMISSES THE COMPLAINT WITH PREJUDICE AS TO DEFENDANT CAROLINA DELGADO-BAILON.

Plaintiff Reginald Thomas (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Irais Delgado (“Defendant Delgado”) and Carolina Delgado-Bailon (“Defendant Delgado-Bailon”) on April 15, 2019. Defendants answered the Complaint on December 7, 2021. The Court granted Plaintiff’s counsel’s motion to be relieved as counsel on October 10, 2022 but ruled the order was only effective upon filing of proof of service of the notice of ruling on all parties. (Minute Order, 10/10/22.) To date, no proof of service of the notice of ruling of the October 10, 2022 order has been filed. Therefore, Plaintiff remains represented by counsel in this action. On December 21, 2022, the Court granted Defendant Delgado-Bailon’s motion to compel Plaintiff’s appearance at deposition and requests for sanctions. (Minute Order, 12/07/22.)

Defendant Delgado-Bailon filed the instant Motion for Terminating Sanctions on February 7, 2023. No opposition has been filed to date.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) 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.

The Court granted Defendant Delgado-Bailon’s motion to compel deposition, pursuant to which Plaintiff was to appear for deposition at a date and time determined by defense counsel, within 20 days of the ruling. (Minute Order, 12/21/22; Motion, Hong Decl., Exh. A.) Notice of the ruling was served on Plaintiff on the same date. (Motion, Hong Decl., Exh. A.) On December 22, 2022, defense counsel served Plaintiff with second amended notice of deposition and request for production of documents. (Id. at Exh. B.) The deposition was scheduled for January 13, 2023. (Ibid.) Plaintiff, however, did not appear for the deposition. (Id. at Exh. C.)

The Court finds that terminating sanctions are warranted for Plaintiff’s non-compliance with the deposition order. Despite notice of the Court’s ruling and the second amended notice of deposition, Plaintiff failed to appear as ordered. This further demonstrates that compliance with the Court’s orders cannot be achieved through lesser sanctions. Although terminating sanctions are a harsh penalty, “[t]he court [is] not required to allow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280.)

Defendant Carolina Delgado-Bailon’s Motion For Terminating Sanctions is GRANTED. THE COURT DISMISSES THE COMPLAINT WITH PREJUDICE AS TO DEFENDANT CAROLINA DELGADO-BAILON.