Judge: Michael P. Linfield, Case: 21STCV39433, Date: 2022-10-28 Tentative Ruling
Case Number: 21STCV39433 Hearing Date: October 28, 2022 Dept: 34
SUBJECT: Motion
for Terminating Sanctions
Moving Party: Defendants
Kingsley 1, LLC and Charles & Cynthia Eberly, Inc.
Resp. Party: None
If Plaintiffs do not appear
at the hearing to argue for a lesser sanctions, the Court will GRANT the Motion
for Terminating Sanctions.
BACKGROUND:
On October 26,
2021, Plaintiffs Arturo Hernandez and Lidia Hernandez filed their Complaint
against Defendants Kingsley 1, LLC and Charles & Cynthia Eberly, Inc.,
d.b.a. The Eberly Company on causes of action related to the habitability of
their leased premises.
On December 6 2021, Defendants filed their Answer.
On June 20, 2022, the Court granted Plaintiff’s
Counsel’s Motions to be Relieved as Counsel. Plaintiffs have not obtained new
counsel.
On July 27, 2022 Defendants
filed their Motion to Compel Depositions of Plaintiffs.
On August 19, 2022, the
Court granted the Motion to Compel Depositions of Plaintiffs.
On September 28, 2022,
Defendants filed their Motion for Terminating Sanctions.
On October 24, 2022,
Defendants filed their Notice of Non-Receipt of Opposition to Motion for
Terminating Sanctions.
Plaintiffs have not filed an
opposition or any other response to the Motion for Terminating Sanctions.
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(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." (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, 279-280.) 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,
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, 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."].)
II.
Discussion
Defendants move the Court to impose the terminating sanction of
dismissing Plaintiffs’ Complaint with prejudice and entering judgment in favor
of Defendants. (Motion, p. 8:8–10.) Defendants argue: (1) that Plaintiffs
failed to appear for their respective depositions on July 6 and 8, 2022; (2)
that Plaintiffs failed to appear at their respective re-noticed depositions on
September 8 and 12, 2022, which were ordered by the Court on August 19, 2022;
(3) that the Court has the power to impose terminating sanctions when parties
do not comply with a Court order; and (4) that the Court should impose
terminating sanctions here because Plaintiffs have failed to appear for both
sets of depositions and have not contacted Defendants’ Counsel about the
depositions despite multiple efforts at multiple times to meet and confer by
Defendants’ Counsel. (Id. at pp. 4:19–20, 4:24–27, 5:7–9, 5:18–24,
7:7–21.)
Plaintiffs did not respond to the earlier Motion to Compel Depositions
of Plaintiffs, and Plaintiffs have not responded to the instant Motion for
Terminating Sanctions. Defendants’ Notice of Non-Receipt of Opposition to
Motion for Terminating Sanctions does not bring any new arguments.
The Court finds that Plaintiffs have failed to follow the Court’s Order
dated August 19, 2022, which compelled Plaintiffs to attend their respective
depositions.
The Court notes that Plaintiffs have been without counsel since June
20, 2022. This is something that Defendants’ Counsel tangentially touches on in
the Motion. (Motion for Terminating Sanctions, p. 4:11–17.)
The Court is sympathetic
to parties who are self-represented. The Court recognizes 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, quoting Burley v. Stein (1974) 40 Cal.App.3d 752,
755, fn. 3.) Further, “[p]roviding
access to justice for self-represented litigants is a priority for California
courts.” (California Rules of Court,
rule 10.960, subdivision (b).)
Nonetheless, ultimately this is Plaintiffs’ case. For more than four
months, Plaintiffs do not appear to have made any efforts to obtain new counsel
or participate at all in this case. Plaintiffs have missed multiple
depositions, including depositions that were ordered by the Court. According to
Defendants’ Counsel, Plaintiffs have not made any effort to contact him about
the depositions. (Day Decl., p. 10:24–26.)
The Court also notes that this motion is unopposed.
The Court considers whether a lesser sanction than outright dismissal
would produce compliance with the Court’s Orders. If Plaintiffs appear at the
hearing and argue for a lesser sanctions, the Court will consider their
arguments.
If Plaintiffs do not appear at the hearing, the Court will have no
choice but to conclude that any lesser sanction than dismissal would not produce
compliance with the Court’s Orders. In that case, terminating
sanctions in the form of striking the Answer of Defendant will be justified
here. (See Code Civ. Proc., § 2023.030(d); Collison & Kaplan, supra,
21 Cal.App.4th at p. 1620.)
III.
Conclusion
If Plaintiffs do not appear
at the hearing to argue for a lesser sanctions, the Court will GRANT the Motion
for Terminating Sanctions.