Judge: Michelle C. Kim, Case: 20STCV44187, Date: 2023-04-14 Tentative Ruling

Case Number: 20STCV44187    Hearing Date: April 14, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

On November 18, 2020, Plaintiff Steven Smith (“Plaintiff”) filed a complaint against Defendant Eric Brown (“Defendant”) for negligence arising out of an automobile accident.

At this time, Defendant moves for an order dismissing the action and imposing monetary sanctions against Plaintiff in the amount of $455.34, payable within 20 days. 

The motion is made pursuant to CCP §§ 2023.010(d), 2023.030(d), 2032.240, 2032.250, and 2025.450(h) and CRC 3.1348 on the grounds that Plaintiff failed to obey the Court’s January 25, 2023, Order (1) compelling Plaintiff to submit to a physical examination on February 1, 2023, with Dr. Michael P. Weinstein and pay sanctions to Defendant in the amount of $300.26, within 20 days, and (2) compelling Plaintiff to appear, testify and produce documents at deposition on February 27, 2023, and pay sanctions to Defendant in the amount of $535.26, within 20 days. 

The motion is unopposed.

A.    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 at793.)  "[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 submits evidence showing Plaintiff has failed to comply with the Court’s January 25, 2023, Order and failed to appear, testify, and produce documents at deposition on February 27, 2023, and failed to submit to physical examination on February 1, 2023.  (Motion, Cox Decl. ¶¶ 6, 12, 16-18; Ex. “A,” Minute Order 01/25/2023.)  Further, Defendant will be prejudiced at trial due to the inability to complete necessary discovery, including obtaining the Plaintiff’s deposition testimony and physical examination.  (Motion, Cox Decl. ¶ 19.)

            Based on the foregoing, Defendant’s request for an order dismissing the action is GRANTED, pursuant to CCP § 2023.030.

B.    Monetary Sanctions

Code of Civil Procedure § 2023.030(a) provides that:

The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.  The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.  If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(Code Civ. Proc., § 2023.030(a).) 

Here, Defendant requests a monetary sanction in the amount of $455.34, calculated as follows: 2 hours in the form of attorney time to meet and confer, review the motion and declaration, and appear at the subject motion at the hourly rate of $160.17; plus 1 hour of paralegal time to reserve the hearing and create a draft of the motion at the hourly rate of $75; plus a motion filing fee of $60.00.  (Motion, Cox Decl. ¶ 19.)

The Court does not find that Plaintiff acted with substantial justification or that other circumstances make the imposition of a monetary sanction unjust as Plaintiff failed to comply with the aforementioned discovery and the Court’s January 25, 2023 Order, and no opposition has been filed.  Also, the Court finds the requested amount reasonable.  Therefore, Defendant’s request for an order imposing monetary sanctions against Plaintiff is GRANTED, pursuant to CCP § 2023.030(a).

Plaintiff is ordered to pay a monetary sanction in the amount of $455.34, within 20 days of this ruling.           

Defendant is ordered to give notice.

The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance.

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 14^th day of April 2023 

A.