Judge: Michael E. Whitaker, Case: 21STCV31435, Date: 2023-03-28 Tentative Ruling

Case Number: 21STCV31435    Hearing Date: March 28, 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 Starbucks Corporation (Defendant) moves to dismiss the complaint of Plaintiff Jennifer Harris (Plaintiff) as a terminating sanction.  Plaintiff’s Counsel has filed a request for judicial notice in opposition to Defendant’s motion for terminating sanctions.  Defendant replies

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of the this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).) Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court grants Plaintiff’s request for judicial notice of Plaintiff’s Motion to Be Relieved as Counsel filed with this Court on or about January 24, 2023, pursuant to Evidence Code section 452, subdivision (d)(1).  However, the Court agrees with Defendant’s argument in reply that notice of Plaintiff’s motion to be relieved scheduled to be heard on April 6, 2023, does not affect the Court’s analysis of the instant motion for terminating sanctions.

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 January 11, 2023, the Court ordered Plaintiff to appear for deposition, produce documents requested in the deposition notice, and pay $480 in monetary sanctions within 30 days of notice of the Court’s orders.  (See January 11. 2023 Minute Order.) Defendant gave Plaintiff notice of the Court’s order on January 12, 2023, electronically, via fax, and by mail. Plaintiff thus had until February 16, 2023, to appear for the deposition, produce responsive documents and pay the monetary sanctions.

As of the filing date of the motion, Plaintiff’s counsel has paid the monetary sanctions imposed on counsel in the January 11, 2023 order.  (Declaration of Samuel S. Baxter, ¶ 15.)  However, Plaintiff has not appeared for deposition or produced documents identified in the deposition notice in compliance with the Court’s order of January 11, 2023.  Plaintiff has thus disobeyed this Court’s order of January 11, 2023.  Further, Plaintiff has not opposed the motion, and has thus waived the right to argue that a terminating sanction is unwarranted.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) 

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion for a terminating sanction, and dismisses Plaintiff’s complaint against Defendant without prejudice. 

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