Judge: Michael E. Whitaker, Case: 19STCV46310, Date: 2022-12-14 Tentative Ruling

Case Number: 19STCV46310    Hearing Date: December 14, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Peigian Tan (Defendant) moves to dismiss the complaint of Plaintiff Ivan Munoz (Plaintiff) as a terminating sanction.  Defendant requests monetary sanctions in connection with the motion.  Plaintiff opposes the motion.

            Preliminarily, the Court notes that Defendant included a request for judicial notice within the motion for terminating sanctions.  Pursuant to California Rules of Court 8.252, subdivision (a), “to obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order.”  As Defendant failed to file a separate motion to request judicial notice, the Court denies his request as procedurally defective.

ANALYSIS

When a party misuses the discovery process by disobeying a court order to provide discovery, the court in its discretion may impose a terminating sanction by striking a party’s pleading or dismissing the action of the party.  (Code Civ. Proc., §§ 2023.010, subd. (g), 2023.030, subds. (d)(1) & (d)(3); 2030.290, subd. (c), 2031.300, subd. (c).) 

California discovery law authorizes a range of penalties for a party's refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions.  A court has broad discretion in selecting the appropriate penalty, . . . . Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly.  A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party's fundamental right to a trial, thus implicating due process rights.  The trial court should select a sanction that is tailored to the harm caused by the withheld discovery.  Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.

(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [cleaned up].)  Equally important, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Here, on March 18, 2022, the Court ordered Plaintiff to serve verified responses, without objections, to Defendant’s requests for production of documents, special interrogatories and form interrogatories, and to pay monetary sanctions in the amount of $1,055 to Defendant within 30 days of notice of the Court’s orders. (See March 18, 2022 Minute Order.)  Defendant gave Plaintiff notice of the Court’s order on March 22, 2022, electronically.  Plaintiff thus had until April 21, 2022, to serve response, and pay the monetary sanctions in compliance with the Court’s order of March 18, 2022.

As of the filing date of the motion, Plaintiff has not served responses or paid the monetary sanctions.  Plaintiff has thus disobeyed this Court’s order of March 18, 2022. 

In opposition, Plaintiff does not directly address or rebut Defendants argument that Plaintiff disobeyed the March 18, 2022 court order, nor does he provide any justification for his failure to serve verified responses or pay monetary sanctions.  Plaintiff does not advance any arguments as to why a terminating sanction is unwarranted.  Thus, Plaintiff has waived the right to argue that a terminating sanction is unwarranted. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Instead, Plaintiff requests a Nunc Pro Tunc reflecting that The Law Office of Hess Panah is relieved as counsel.  The Court has inherent authority to enter retroactive orders. (See Scalice v. Performance Cleaning Systems¿(1996) 50 Cal.App.4th 221, 238-239.)  A request for a retroactive order “is to be granted or refused as justice may require in view of the circumstances of a particular case.”  (Young v. Gardner-Denver Co.¿(1966) 244 Cal.App.2d 915, 919.)  

Plaintiff advances the declaration of their counsel, Hess Panah (Counsel), who states that his office filed a motion to be relieved of counsel to be heard on September 21, 2022.  (Declaration of Hess Panah, ¶ 5; see also September 21, 2022 Minute Order.)  Counsel avers that the Court posted a tentative ruling reflecting that the Court would grant the motion.  (Declaration of Hess Panah, ¶ 6.).  However, because Counsel failed to appear or make contact with the Court in regards to the hearing, the Court took the motion off calendar.  (See September 21, 2022 Minute Order.)  Counsel however states that his office submitted to the Court’s tentative ruling and stated “they would not appear” via email.  (Declaration of Hess Panah, ¶ 8, Exhibit A.)  The Court finds Plaintiff’s arguments and evidence do not demonstrate that justice requires the Court enter a retroactive order granting the September 21, 2022, motion to be relieved as counsel. 

CONCLUSION AND ORDER