Judge: Michael T. Smyth, Case: 37-2022-00005679-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00005679-CU-PO-CTL SALAZAR VS WALMART INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Sanctions, 02/01/2024

Defendant Walmart Inc.'s unopposed Motion for Terminating Sanctions is DENIED at this time.

Typically, there must be repeated failures to comply with court orders to justify terminating sanctions.

(E.g., Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069 ['Repeated failure to respond to discovery and to comply with court orders compelling discovery provides ample grounds for imposition of the ultimate sanction.'] [emphasis added]; see also Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 53-55 [court has inherent power to impose terminating sanctions for 'pervasive conduct' consisting of repeated violation of court's orders].) Here, it appears that Plaintiff has failed to comply with only one order compelling discovery responses. (See ROA 53.) While the court acknowledges that Plaintiff has failed to participate in her own litigation up to this point, it is not clear that Plaintiff is willfully disobeying the court's orders. (See Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th at 928-929 ['the failure must be willful.'].) Dismissal may be appropriate, however. California Rules of Court, rule 3.1340(a) states that '[t]he court on its own motion or on motion of the defendant may dismiss an action . . . for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.' Dismissal is appropriate where there is no showing of excusable delay and where a plaintiff refuses to participate in the litigation. (See, e.g., Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Ca1.3d 554, 562-63.) 'If the court intends to dismiss an action on its own motion, the clerk must set a hearing on the dismissal and send notice to all parties at least 20 days before the hearing date.' (Cal. Rules of Court, Rule 3.1340(b).) The court sets an OSC re dismissal for this action for May 31, 2024 at 11:00 a.m.

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