Judge: Michael P. Linfield, Case: 21STCV04559, Date: 2023-05-24 Tentative Ruling

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Case Number: 21STCV04559    Hearing Date: May 24, 2023    Dept: 34

SUBJECT:         Motion for Terminating Sanctions

Moving Party:  Defendant La Playita Auto Sales, Inc.

Resp. Party:    None

Defendant La Playita Auto Sales, Inc.’s Motion for Terminating Sanctions is GRANTED in part.

Plaintiff’s Complaint is DISMISSED without prejudice.

BACKGROUND:

On February 4, 2021, Plaintiff Kymberlee Michelee Nelson filed her Complaint against Defendants La Playita Auto Sales, Inc. and Hudson Insurance Company. This case regards Plaintiff’s purchase of a car from Defendants that had allegedly been previously rented and damaged.

On January 24, 2022, by request of Plaintiff, the Clerk’s Office dismissed with prejudice Hudson Insurance Company from the Complaint.

On August 10, 2022, Plaintiff filed her First Amended Complaint against Defendant.

On January 27, 2023, Plaintiff filed her Second Amended Complaint (SAC).

On February 28, 2023, Defendant La Playita Auto Sales, Inc. (“Defendant”) filed its Answer to Plaintiff’s SAC.

On March 2, 2023, the Court granted Plaintiff’s Counsel’s Motion to be Relieved as Counsel.

On April 28, 2023, Defendant filed its Motion for Terminating Sanctions. In support of its Motion, Defendant filed: (1) Memorandum of Points and Authorities; and (2) Declaration of Joshua Kroot.

On May 17, 2023, Defendant filed its Reply.

Plaintiff has not filed an opposition or other response to the Motion.

ANALYSIS:

I.           Legal Standard 

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. (Code Civ. Proc., § 2023.030, subd. (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, 795–96.)¿¿ 

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A terminating sanction is a "drastic measure which should be employed with caution." (Id. at p. 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, 279–80.)¿¿¿ 

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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, supra, 84 Cal.App.3d at p. 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Id.) 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, 971.)¿¿ 

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"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."].)¿¿ 

II.        Discussion

Defendant moves the Court to dismiss with prejudice Plaintiff’s claims pursuant to Code of Civil Procedure section 2023.030, subdivision (d). (Motion, p. 4:5–6.)

Defendant argues that this would be appropriate because: (1) Defendant served Plaintiff with discovery requests on October 6, 2022 and a notice of Plaintiff’s deposition for December 5, 2022; (2) Plaintiff has did not respond to the discovery requests or appear for her deposition; (3) on December 13, 2022, pursuant to the Parties’ Stipulation, the Court ordered Plaintiff to respond to all discovery requests and sit for deposition by February 15, 2023; and (4) no discovery has been produced and Plaintiff has not appeared for her deposition. (Motion, pp. 2:6–28, 3:1–4.)

        Defendant argues in its Reply that the Motion should be granted because Plaintiff did not file an opposition. (Reply, p. 1:24–25.)

        The Court has no evidence that Plaintiff served discovery responses or that she complied with the Court’s Order dated December 13, 2022. (Stipulation and Order to Continue Trial Date and Related Deadlines, dated December 13, 2022, p. 5:16–17 [“Plaintiff must respond to all of La Playita’s discovery requests and sit for depositions by February 15, 2023.”].)  On February 23, 2023, at the hearing on Defendant’s motion to Compel, Plaintiff’s counsel informed the Court that he had lost contact with his client.  Plaintiff also did not respond to Defendant’s Motion for Terminating Sanctions. There is no indication that any sanction would result in Plaintiff serving responses to Defendant’s discovery requests or otherwise participating in this litigation.

        The Court GRANTS the Motion for terminating sanctions.  

        However, since Plaintiff is now in pro per, the Court dismisses Plaintiff’s Complaint without prejudice.

III.     Conclusion   

Defendant La Playita Auto Sales, Inc.’s Motion for Terminating Sanctions is GRANTED in part.

Plaintiff’s Complaint is DISMISSED without prejudice.