Judge: Michelle C. Kim, Case: 19STCV42012, Date: 2023-05-05 Tentative Ruling

Case Number: 19STCV42012    Hearing Date: May 5, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Krista Jensen (“Plaintiff”) filed this action against Defendant Alaska Airlines Inc. (“Defendant”), et al. for injuries Plaintiff sustained while on board of Defendant’s aircraft. 

At this time, Defendant moves for terminating sanctions against Plaintiff for disobeying the Court’s December 8, 2022 order regarding written discovery responses, and for failing to submit to authorized methods of discovery.  The motion is unopposed.  On April 28, 2023, Defendant filed a reply noting that no opposition was served or filed by Plaintiff. 

2. Motion for Terminating Sanctions

Code of Civil Procedure § 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).)  “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.) 

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 Cal.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.)  "[A] 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, 971].)

Here, Defendant asserts that Plaintiff has repeatedly misused the discovery process in this action.  Defendant provides that on December 8, 2022, at the hearing on the Order to Show Cause Re: Dismissal, Plaintiff was ordered to serve verified responses to Form Interrogatories, Special Interrogatories, Requests for Admission, and Requests for Production of Documents within 30 days.  Defendant states that Plaintiff has failed to serve responses to the discovery, which were due over two years ago.  Additionally, Defendant asserts that Plaintiff failed to appear for her properly noticed deposition on November 1, 2022.  Further, Defendant contends that at a minimum, Plaintiff should be precluded from offering any evidence regarding the circumstances of the incident or nature and extent of Plaintiff’s damages. 

At the OSC on December 8, 2022, the Court noted the following: “By agreement of the parties, plaintiff is to provide verified responses including form interrogatories, special interrogatories, request for production and request for admissions in 30 days.”  Defendant contends that to date, Plaintiff has not served responses to the discovery.  A decision to order a terminating sanction should not be made lightly unless the violation is willful, preceded by a history of abuse and evidence shows that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)  Although Defendant provides evidence showing that Plaintiff failed to comply with the parties’ agreement made on December 8, 2022, Defendant has not shown that lesser sanctions would be ineffective in getting Plaintiff to comply with her discovery obligations.  No prior order compelling Plaintiff to respond to the subject discovery has been entered in this action.  The Court’s records show that Defendant has not moved to compel responses against Plaintiff or to compel Plaintiff to appear for her deposition. 

Because Defendant has not obtained a prior court order compelling Plaintiff to respond to discovery or appear for deposition, the Court finds terminating sanctions unduly harsh and unwarranted at this time.  (Deyo, 84 Cal.App.3d at 793; Dept. of Forestry & Fire Protection, 18 Cal.App.5th at 191 (“terminating sanctions are to be used sparingly because of the drastic effect of their application.”].)  “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.”  (Dept. of Forestry & Fire Protection, 18 Cal.App.5th at 191 [But recognizing that terminating sanctions can be imposed as a first measure when record shows lesser sanctions would be ineffective].)  Given the above facts, the first sanction imposed against Plaintiff should not be a termination sanction, especially when no order imposing lesser sanctions has been issued. 

As to Defendant’s request for an order precluding Plaintiff from offering any evidence regarding the circumstances surrounding the alleged incident and the nature and extent of her purported damages or calling any witnesses or offering her own testimony on liability and damages, as Defendant acknowledges, such sanctions would effectively terminate Plaintiff’s case.  For the reasons stated above, Defendant does not establish that terminating sanctions are warranted at this time. 

The motion is denied.  However, Plaintiff is put on notice that the Court will impose substantial monetary sanctions on Plaintiff and/or Plaintiff’s counsel if Defendant successfully moves to compel Plaintiff to comply with her discovery obligations and a proper request for sanctions is made. 

Moving Defendant is ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 5^th day of May 2023