SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiff, Ron York (“Plaintiff”) filed this action against Defendants, Julio Sanipatin (erroneously sued as Julio Villena) and Hollywood Glass Co., Inc. (collectively, “Defendants”) for damages arising from a motor vehicle accident.    

Defendants now move for terminating sanctions against Plaintiff to dismiss Plaintiff’s complaint, or in the alternative, evidentiary sanctions for Plaintiff’s failure to appear for his deposition in compliance with the Court’s June 6, 2023 Order.  

Plaintiff opposes the motion, and Defendants filed a reply. 

 

II. 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).)  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, Defendants submit that Plaintiff failed to comply with the Court’s June 6, 2023 Order compelling Plaintiff to appear at his deposition. (Min. Order, June 6, 2023.) Defendants aver that after the motion to compel Plaintiff’s deposition was granted, Plaintiff’s counsel agreed on a mutual date for Plaintiff’s deposition. However, on the date of the deposition, Plaintiff’s counsel appeared, but Plaintiff did not. Plaintiff’s counsel stated they would email defense counsel later to reschedule the deposition. Defendants also argue Plaintiff has not paid the past monetary sanction orders. Defendants submit other arguments outside the scope of Defendants’ Notice, in which the grounds for terminating sanctions specified non-compliance with the Court’s order related to Plaintiff’s deposition. “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (CRC Rule 3.1110(a); see also CCP §1010.) Generally, courts may only consider issues or grounds specified in the notice of motion or supporting documents incorporated by reference in the notice. (Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125.) Therefore, the Court will not consider arguments raised outside the parameters of Defendants’ Notice. 

In opposition, Plaintiff contends that Plaintiff was unable to attend the June 20, 2023 deposition, and that Plaintiff’s counsel agreed on record to reschedule the deposition to a time convenient for defense counsel. Plaintiff’s counsel argues they sent several emails to defense counsel to reschedule, but defense counsel never responded. Furthermore, upon receipt of the instant motion, Plaintiff’s counsel declares they contacted defense counsel about rescheduling the deposition, and the parties agreed to reschedule Plaintiff’s deposition for July 5, 2023 at 8:30 a.m. Since then, Plaintiff’s deposition has moved forward.  

In reply, Defendants reiterate that Plaintiff has not paid the ordered sanctions pursuant to the June 6, 2023 order. Defendants also raise arguments related to production of experts and Plaintiff’s Independent Medical Examination; however, as previously stated, the Court will not address arguments outside of the specific grounds noticed in Defendants’ Notice.  

The Court finds that Defendants have not demonstrated that less severe sanctions would not produce compliance with the discovery rules, because Plaintiff’s deposition has since moved forward. Based on the foregoing, Defendants’ motion for terminating sanctions is DENIED.  

 

III. Sanctions  

Defendants seek monetary sanctions in connection with the instant motion under CCP §§ 2023.030 and 2025.450(g). Because the Court denied Defendants’ motion, the Court declines to award monetary sanctions at this time.  

 

Defendants are ordered to give notice. 

 

PLEASE TAKE NOTICE: 

Dated this 27th day of September 2023