Judge: Michael E. Whitaker, Case: 21STCV18832, Date: 2023-05-11 Tentative Ruling

Case Number: 21STCV18832    Hearing Date: May 11, 2023    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 Los Angeles County Metropolitan Transportation Authority (Defendant) moves to dismiss the action filed by Plaintiff Seven Kovalski (Plaintiff) as a terminating sanction.  Plaintiff has not filed an opposition to the motion.

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); 2025.450, subd. (h).)

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 December 12, 2022, the Court ordered Plaintiff to appear for deposition within 30 days of notice of the Court’s order.  (See December 12, 2022 Minute Order.)  Defendant gave Plaintiff notice of the Court’s order on December 12, 2022.  Thus, Plaintiff had until January 11, 2023 to appear for deposition.  On March 7, 2023, Defendant served its fourth notice of continuance of Plaintiff’s deposition on Plaintiff, setting the deposition to take place on March 23, 2023.  Plaintiff failed to appear for the March 23, 2023 deposition without providing any objection. 

As of the filing date of this motion, Plaintiff has not appeared for deposition.  Plaintiff has thus disobeyed this Court’s order of December 12, 2022.  Further, Plaintiff has not opposed the motion, and has waived the right to argue that terminating sanctions are unwarranted.  (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)   

CONCLUSION AND ORDER 

Therefore, the Court grants Defendant’s motion for terminating sanctions, and dismisses Plaintiff Seven Kovalski’s action against Defendant. 

Defendant shall provide notice of this Court’s ruling and file a proof of service of such