Judge: Michael E. Whitaker, Case: 20STCV11602, Date: 2022-08-12 Tentative Ruling

Case Number: 20STCV11602    Hearing Date: August 12, 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 Daniel Enayati, M.D. moves to dismiss Plaintiff Olivia Cuevas’s complaint for failure to prosecute diligently.  In the alternative, Defendant moves to dismiss the complaint of plaintiff Olivia Cuevas as a terminating sanction.  Plaintiff opposes the motion.  

EVIDENCE

            With respect to Defendant’s objection to the Declaration of Anthony Choe in support of Plaintiff’s opposition, the Court rules as follows:

1. Sustained.

ANALYSIS

1. TERMINATING SANCTION

    

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 June 29, 2022, the Court ordered Plaintiff to serve verified responses, without objections, to Defendant’s form interrogatories, set one; and to pay monetary sanctions in the amount of $410, to Defendant within 30 days of notice of the Court’s orders. (See June 29, 2022 Minute Order.)  On July 1, 2022, the Court ordered Plaintiff to serve verified responses, without objections, to Defendant’s special interrogatories, set one, and demand for production of documents, set one; and to pay monetary sanctions in the amount of $645, to Defendant within 30 days of notice of the Court’s orders. (See July 1, 2022 Minute Order.)

Defendant gave Plaintiff notice of the Court’s orders of June 29, 2022, and July 1, 2022,  on July 1, 2022, electronically. Plaintiff thus had until August 2, 2022, to serve responses and pay the monetary sanctions in compliance with the Court’s orders of June 29, 2022, and July 1, 2022. 

The Court notes that Defendant filed this motion on July 21, 2022, or 12 days before the deadline for Plaintiff to serve responses in compliance with the Court’s orders of June 29, 2022, and July 1, 2022, and pay the monetary sanctions.  The Court therefore denies the motion for terminating sanction, without prejudice, as premature.

1. FAILURE TO DILIGENTLY PROSECUTE

Defendant moves to dismiss the action per the Court’s inherent discretionary authority to dismiss under Code of Civil Procedure section 583.150.  (See Code Civ. Proc., § 583.150; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 [“in the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice”].)  When exercising this discretionary power, the Court must consider two significant factors: (1) whether the plaintiff’s conduct was “severe and deliberate”; and (2) whether alternatives less severe than dismissal are available to remedy the situation.  “[S]ound exercise of discretion requires the judge to consider and use lesser sanctions unless the court’s authority cannot possible be otherwise vindicated.” (Lyons, supra, 42 Cal.3d 911 at p. 917.) 

            Here, Defendant advances the declaration of counsel for Defendant, Gary L. Dennis (“Dennis”).  In sum, Dennis states Plaintiff has failed to diligently prosecute the action because she has not filed an amended complaint per the parties’ discussions and has failed to timely respond to Defendant’s written discovery and the Court’s orders of June 29, 2022, and July 1, 2022.  (See Declaration of Gary L. Dennis, ¶¶ 6-13.)  Dennis also asserts that dismissal is warranted because Plaintiff has not yet filed proof of service of the summons and complaint on Defendant.  (Declaration of Gary L. Dennis, ¶ 5.)  Dennis therefore concludes that Plaintiff’s actions have prejudiced Defendant, for which the only remedy to his “reputation, piece of mind, and his constitutional rights to due process” is dismissal with prejudice.  (Declaration of Gary L. Dennis, ¶ 14.)  The Court disagrees.

            The Court notes, first, that Defendant does not dispute or otherwise contend that service of process on Defendant in this case was proper.  Defendant’s argument concerning due process is therefore unmeritorious.  With respect to Plaintiff’s alleged dilatory conduct, Defendant has failed to show that such conduct was so “severe and deliberate” as to warrant dismissal with prejudice, and that no other less severe alternatives are available to remedy the situation – i.e., the receipt of Plaintiff’s discovery responses and monetary sanctions, and the filing of a proof of service of summons and complaint on Defendant.  As noted above, Defendant’s motion for terminating sanctions was prematurely filed and, for the same reason, the Court finds that Defendant’s request to dismiss for Plaintiff’s failure to serve her discovery responses and pay monetary sanctions prior to the statutory deadline to do so would be entirely unwarranted and an abuse of this Court’s discretion. 

            The Court therefore denies Defendant’s motion to dismiss for failure to prosecute diligently, or in the alternative, denies Defendant’s motion for terminating sanction.  Defendant shall provide notice of this Court’s ruling and file a proof of service of such.