Judge: Mark H. Epstein, Case: 21SMCV00320, Date: 2023-03-23 Tentative Ruling

Case Number: 21SMCV00320    Hearing Date: March 23, 2023    Dept: R

The court is inclined to DENY the unopposed motion for terminating sanctions without prejudice to the future motion for other sanctions, but only subject to an explanation for plaintiff’s refusal to appear at deposition.

Essentially, plaintiff contended that defendant wrongfully terminated his right to conduct business out of defendant’s property.  Plaintiff’s motion for a preliminary injunction failed and the case remains ongoing. 

Plaintiff’s theory apparently is that he was in negotiations with defendant to obtain an extension of his right to operate from defendant’s premises and that he had obtained at least an oral commitment, reflected in unsigned emails, to so allow and that he relied on that oral commitment to his detriment.  However, defendant ultimately refused to go forward with that commitment.  Plaintiff might also be claiming that there was some other bar to terminating his ability to do business from the premises, but that is unclear from plaintiff’s discovery responses.

To the extent that plaintiff is claiming only the former, his response—listing the emails and identifying the former employees who made the alleged promises—might be enough.  If that is his theory, then the better course would be to hold plaintiff to those responses and the specific documents and witnesses identified therein.  If they are enough to make out the case, then plaintiff will prevail.  What he cannot do is to suddenly assert a slew of new and different documents at trial, at least without proper warning and notice (and perhaps a request to amend the discovery responses appropriately).

That said, if plaintiff refuses to be deposed, it is another matter.  Such a refusal cannot be dealt with through issue or evidentiary sanctions.  The court will inquire on that point.

It could also be that plaintiff is simply giving up the fight—having elected not to oppose a motion for terminating sanctions.  If that is the case, the court will inquire whether plaintiff is essentially suggesting that the case be dismissed at this time.

No monetary sanctions will be awarded for this motion unless: (1) plaintiff is continuing the case; and (2) plaintiff cannot explain his apparent refusal to be deposed.