Judge: Mark E. Windham, Case: 20STLC02294, Date: 2023-08-29 Tentative Ruling
Case Number: 20STLC02294 Hearing Date: February 6, 2024 Dept: 26
Tiznado
v. Leal, et al.
MOTION FOR TERMINATING SANCTIONS
(CCP § 2023.010)
TENTATIVE RULING:
Defendant Julio Leal’s Motion for Terminating Sanctions is GRANTED. PLAINTIFFS JORGE TIZNADO AND
ANDREA RODRIGUEZ’S COMPLAINT, FILED ON
MARCH 9, 2020, IS DISMISSED WITH PREJUDICE.
ANALYSIS:
On March 9, 2020, Plaintiffs Jorge
Tiznado and Andrea Rodriguez (“Plaintiffs”) filed
this motor vehicle action against Defendant Julio Leal (“Defendant”).
Defendant filed an answer to the Complaint on July 22, 2021. Defendant filed a Motion to Compel Deposition and Continue
Trial Date; Request for Sanctions on July 13, 2023. Upon Plaintiff’s ex parte
application, the trial date was continued to March 18, 2024. (Minute Order,
07/25/23.)
On August 29, 2023, the Court granted Defendant’s Motion to Compel
Deposition and Request for Sanctions.
(Minute Order, 08/29/23.) The Court ordered Plaintiffs to appear for deposition
and to pay sanctions within 20 days. (Ibid.) Defendant filed the instant Motion
for Terminating Sanctions on November
28, 2023. No opposition has been filed to date.
Discussion
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.
(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
The Court granted Defendant’s Motion to Compel Deposition
and Request for Sanctions on August 29, 2023. (Minute Order, 08/29/23; Motion, Kandarian-Stein
Decl., Exh. A.) Defendant served Plaintiffs with Notice of Taking Continued
Deposition, with the depositions set for October 24 and 25, 2023. (Id. at ¶¶11-12 and Exh. B.) Plaintiffs did not appear on October 24 and
25, 2023. (Id. at 11.) On October 25, 2023, Defendant issued another Notice
of Taking Continued Deposition of Plaintiffs for November 14, 2023. (Id.
at ¶¶13-14 and Exh. D.) Plaintiffs did not appear on November 14, 2023. (Id.
at ¶¶14-15 and Exh. E.) To date, Plaintiffs have not complied with the
order to appear for deposition. (Id. at ¶16.)
The Court finds that terminating sanctions are warranted for
Plaintiffs’ non-compliance with the discovery order. Despite notice of the
Court’s ruling, Plaintiffs failed to appear for deposition as ordered. Nor have
Plaintiffs filed an opposition to this noticed motion. This 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.)
Conclusion
Moving party to give notice.