Judge: Michael P. Linfield, Case: 20STCV42053, Date: 2022-09-29 Tentative Ruling

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Case Number: 20STCV42053    Hearing Date: September 29, 2022    Dept: 34

SUBJECT:                 Defendant Michael Williams’ Motion for Terminating Sanctions and Monetary Sanctions of $7,691.50 Against Plaintiff, Or, in the Alternative, Evidentiary Sanctions and Monetary Sanctions and Monetary Sanctions of $7,691.50 Against Plaintiff

Moving Party:          Defendant Michael Williams

Resp. Party:             Plaintiff Lannette Johnson

 

 

Defendant Michael Williams’ Motion for Terminating Sanctions is GRANTED.

 

Defendant Michael Williams Motion for Monetary Sanctions is DENIED.

 

I.           BACKGROUND

 

On November 3, 2020, Plaintiff Lannette Johnson filed a complaint against Defendant Michael Williams alleging a single cause of action for negligence.

 

On December 31, 2020, Johnson filed a First Amended Complaint against Defendants Michael Williams again alleging a single cause of action for negligence.

 

On May 3, 2021, Johnson filed a Second Amended Complaint against Defendants Michael Williams alleging the following three causes of action:

 

1.           Negligence – Vicarious Liability, Legal Relationship Not Disputed

2.           Nuisance

3.           Negligent Infliction of Emotional Distress

 

On August 10, 2021, Johnson filed a Third Amended Complaint against Defendants Michael Williams to allege the following two causes of action:

 

1.           Negligence

2.           Nuisance

 

On May 25, 2022, the Court granted Williams’ Motion to Compel Deposition of Plaintiff Lannette Johnson and Williams’ Motion to Compel Responses to Williams’ Special Interrogatories, Set One.

 

On May 26, 2022, the Court granted Plaintiff Lannette Johnson’s counsel’s Motion to be Relieved as Counsel.

 

On July 1, 2022, Defendant Michael Williams moved the Court for an order “granting terminating sanctions and monetary sanctions in the amount of $5,605.00 against Plaintiff Lannette Johnson, made payable to Defendant’s counsel, for her willful failure to comply with this Court’s discovery order from May 25, 2022.” (Motion, filed July 1, 2022, p. 25-27.)

 

On July 21, 2022, Williams replied to his motion. No opposition was filed with the Court.

 

On July 28, 2022, the Court denied Defendant Michael Williams’ motion for terminating sanctions, ordered Plaintiff Lannette Johnson to submit to Williams’ deposition within fourteen days of the hearing, and ordered Johnson to pay monetary sanctions to Williams in the amount of $2,065.00. (Minute Order, July 28, 2022, pp. 1-2.)

 

On August 16, 2022, Defendant Michael Williams moved the Court for an order “granting terminating sanctions and monetary sanctions in the amount of $7,691.50 against Plaintiff Lannette Johnson and in favor of Defendant for her willful failure to comply with this Court’s discovery order from July 28, 2022. More specifically, Plaintiff willfully failed for a second time to comply with this Court’s order to both (1) appear for deposition and (2) provide verified further response to special interrogatories, set one, without objection. In the alternative to the Court granting terminating and monetary sanctions, Defendant requests an order from the Court granting evidentiary sanctions and monetary sanctions in the amount of $7,691.50 against Plaintiff and in favor of Defendant.” (Motion, p. 1:23—2:2.)

 

Plaintiff, in pro per, filed an untimely opposition with the Court on September 12, 2022.

 

At the September 13, 2022 hearing on the motion, the Court continued the hearing until today.

 

II.        ANALYSIS

 

A.          Legal Standard

 

1.           Terminating Sanctions

 

Code of Civil Procedure section 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (CCP § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

 

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Ca1.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these 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." (Deyo, 84 Cal.App.3d at 793.) "[Al court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 9711.) 

 

"A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions .... (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327. But see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 ["willfulness is no longer a requirement for the imposition of discovery sanctions."].) 

 

 

2.           Monetary Sanctions

 

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2023.030(a).)

 

B.          Discussion

 

1.           Terminating Sanctions

 

On May 25, 2022, this Court granted Defendant Michael Williams’ Motion to Compel Deposition of Plaintiff Lannette Johnson and ordered Johnson’s deposition to be taken before the end of June 2022. (Minute Order, May 25, 2022, p. 12.)

 

On July 28 2022, the Court ordered Johnson “to submit to Defendant Michael Williams’ deposition within 14 days of this hearing.” (Minute Order, July 28, 2022, p. 1.) The Court notes that fourteen days from the July 28, 2022 hearing was August 11, 2022. Further, Johnson has failed to submit to properly noticed depositions on March 28th, June 27th, and August 11th. (Allison Decl., ¶¶ 2, 14, 24.) The Court lacks any evidence that Johnson obeyed the Court’s orders of May 25, 2022 and July 28, 2022.

 

At the July 28, 2022 hearing, Ms. Johnson orally indicated to the Court that she has severe medical issues, was unable to participate in the case, and wanted to stay the case for at least six months.  The Court would not stay the case without further evidence, either under oath or from a medical provider, regarding her medical issues.  The Court also indicated that it could not give Ms. Johnson legal advice, but that she might want to discuss with an attorney as to whether she should voluntarily dismiss the case without prejudice.

 

Plaintiff Johnson states that no link was ever sent to her for a deposition on August 11, 2022. (Opposition, p. 5:23-24.) The Court does not have evidence of the specific email used by Williams’ counsel to convey access to the remote deposition scheduled for August 11, 2022. However, both the Third Amended Notice of Deposition of Plaintiff Lannette Johnson and the series of emails between Williams’ counsel and Johnson where Williams’ counsel notes in a July 28, 2022 email their intention to serve Johnson with a notice of deposition for August 11, 2022 have been reviewed by the Court. (Allison Decl., ¶¶ 18-23, Exs. B, C.) Johnson’s email appears within the email chain and the Service List for the Third Amended Notice of Deposition. (Id.)

 

On September 12, 2022, the Court received an untimely opposition to this motion from Ms. Johnson.  The opposition basically indicates that the fault lies not with Ms. Johnson, but with her previous attorney.  The opposition also indicates that Ms. Johnson has been diagnosed with “pulmonary hypertension with right heart failure.”  (Opposition, Exh. A, filed 9/12/2022.)

 

        The Court recognizes that Ms. Johnson is representing herself in pro per, and that to the pro per litigant, “interrogatories, requests for admissions, law and motion proceedings, and the like” are “baffling devices.”  (Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1363.) The Court also recognizes that “[p]roviding access to justice for self-represented litigants is a priority for California courts.”  (California Rules of Court, rule 10.960, subdivision (b).)

 

        At the same time, “a party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. Indeed, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1 [cleaned up]; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

               

Johnson had notice – through this Court’s order, subsequent emails, and a Notice of Deposition – that she was to submit to Williams’ deposition by August 11, 2022. (Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1363.) In fact, the day before the planned deposition, Plaintiff Johnson emailed Williams’ attorney Sara Rasmussen to:  “Please make sure the deposition Chris Allison scheduled for 8/11 is taking off calendar to avoid your practice incurring fees for my no show. Thank you” (Johnson email, August 10, 2022 at 2:59:40 PM, Allison Decl., ¶¶ 18, 19, Ex. B.)

 

The Court is aware that Plaintiff Johnson has repeatedly stated that she has health complications and has been unable to retain an attorney.  (Opposition, p. 4:26—5:21.)  Nonetheless, Ms. Johnson has failed to comply with two Court orders and refused to submit to three properly-noticed depositions. The Court has provided Johnson multiple opportunities to submit to Williams’ properly noticed depositions. Johnson has refused. Ms. Johnson is the plaintiff; she decided to file this action.

 

Further, at the September 12, 2022 hearing, Plaintiff Johnson told the Court that she was going to file a motion to stay the case.  The Court stated that it would hear Johnson’s motion to stay on today’s date, simultaneously with Defendant’s motion for terminating sanctions.  However, Plaintiff Johnson only filed a motion to stay the case on September 27, 2022, two days before this hearing.  This appears to repeat a pattern in which Plaintiff has filed pleadings just one or two days before the scheduled hearing.

 

Further, Plaintiff is, in effect, asking for an indefinite stay of her case.  She states that she is having a CT scan on October 5, 2022, “followed by a surgical consultation appt [sic] on 10/12/22.”  (Declaration of Johnson, ¶ 30.)  There is no indication of what further procedures will be needed, or when those procedures would occur.  Further, Plaintiff Johnson has not attached any letters or declarations from her medical providers.

 

Trial is barely two weeks away and the statutory discovery cut-off is now in effect. Terminating sanctions are warranted because less severe sanctions have not achieved the expected compliance with discovery rules.

 

2.           Monetary Sanctions

 

Considering the Court’s granting the motion for terminating sanctions, and recognizing that Ms. Johnson is in pro per, the Court declines to impose additional monetary sanctions.

 

 

III.     CONCLUSION

 

Defendant Michael Williams’ Motion for Terminating Sanctions is GRANTED.

 

Defendant Michael Williams Motion for Monetary Sanctions is DENIED.