Judge Randolph M. Hammock, Case Number: 20STCV46197, Date: 2023-09-08 Tentative Ruling

Judge: Randolph M. Hammock, Case: 20STCV46197, Date: 2023-09-08 Tentative Ruling

MOTION FOR MONETARY, ISSUE, EVIDENTIARY, AND TERMINATING SANCTIONS (1) STRIKING DEFENDANT RODRIGUEZ’S ANSWER TO PLAINTIFF’S COMPLAINT & (2) ENTERING DEFAULT JUDGMENT PURSUANT TO CAL. CODE OF CIVIL PROCEDURE § 2023.030 AGAINST DEFENDANT MOISES RODRIGUEZ;

Plaintiff Maria Ramirez alleges she worked for Defendant Amatigroup, Inc., where she faced harassment, discrimination, and retaliation based on her gender. Defendant Moises Rodriguez is alleged to be Defendant Plaintiff’s supervisor and Amatigroup’s owner, officer, or other controlling figure. Plaintiff alleges Defendant Rodriguez engaged in sexual misconduct in the workplace. Plaintiff alleges Defendant terminated her employment after complaining of her harassment, discrimination, or retaliation.

Plaintiff now moves for an order imposing terminating sanctions striking Defendant Moises Rodriguez’s Answer to Plaintiff’s First Amended Complaint and entering default judgment against Defendant. No opposition was filed.

Plaintiff’s Motion for Terminating Sanctions is GRANTED. Defendant’s Answer to the First Amended Complaint is ordered stricken and default is hereby entered against Defendant Moises Rodriguez.

A Default Judgment is not entered at this time. An OSC re: Entry of Default Judgment is set for 12/8/23 at 8:30 a.m. Plaintiff is to utilize the standard process for proving and entering a Default Judgment, per CCP §§ 585 et seq.

The Court has the authority to impose sanctions against a party that engages in the misuse of the discovery process. (CCP § 2023.030.) Misuse of the discovery process includes disobeying a court order to provide discovery. (CCP §§ 2023.010(g).) A party engaging in this conduct may be subject to sanctions including monetary, issue, evidence, or terminating sanctions. (CCP § 2023.030(a)-(d).)

The Court must “tailor the sanction to the harm caused by the withheld discovery.” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-1619.) “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. ‘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.’” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)

In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Plaintiff served the instant motion on Defendant’s now previous counsel, Elliot Tiomkin, by mail and email on May 18, 2023. (See 05/18/23 Proof of Service.) At the time of service, Defendant’s former counsel had a pending motion to be relieved as counsel. This court granted that motion on June 2, 2023. Thus, Defendant was still represented by counsel at the time of service.

Be that as it may, recognizing that the relationship between Defendant and his counsel “had broken down,” Plaintiff “made additional steps to provide Defendant Rodriguez with notice of this motion.” (Candiotti Suppl. Decl. ¶ 5.) On June 13, 2023, Plaintiff’s counsel Troy Candiotti contacted Defendant by telephone at a number provided by Defendant’s former counsel. (Id. ¶ 6.) Candiotti and Defendant “spoke briefly” about a trial continuance. (Id.) Defendant agreed to a continuance and provided his email address, jasehaber@gmail.com. (Id.) On August 8, 2023, Plaintiff emailed Defendant Rodriguez a copy of the instant motion, and he acknowledged receipt by replying “Thank you so much!” on August 9, 2023. (Id. ¶ 9, Exh. F.)

Based on this, the court finds Defendant had proper notice of the hearing and based on the declaration of Plaintiff’s counsel Troy R. Candiotti, had actual notice of the hearing.

Plaintiff moves for terminating sanctions against Defendant for misuse of the discovery process, or in the alternative, issue, evidentiary, and/or monetary sanctions. Defendant did not file an opposition to the motion.

On February 2, 2023, the parties stipulated, by signed order, that Defendant Rodriguez’s deposition would be held on March 9, 2023. (See 02/02/2023 Stipulation.) Defendant did not appear. (See Candiotti Decl. ¶ 9.) Plaintiff then re-noticed Defendant’s deposition for April 12, 2023. (Id. ¶¶ 11, 12.) Defendant again failed to appear. (Id. ¶ 13.)

On April 14, 2023, Plaintiff moved to compel Rodriguez’s deposition due to Rodriguez’s failure to appear for the stipulated deposition.

On April 27, 2023, Defendant’s counsel moved to be relieved. On May 9, 2023, this court denied Plaintiff’s motion to compel Defendant’s deposition without prejudice, given the court had already ordered Defendant appear for deposition.

On May 18, 2023, Plaintiff moved for an order deeming Plaintiff’s request for admissions served on Defendant Rodriguez admitted. On June 2, 2023, this court granted Defendant’s counsel’s motion to be relieved. On June 15, 2023, this court granted Plaintiff’s motion to deem the RFAs admitted, and imposed sanctions against Defendant Rodriguez in the amount of $810.00. On June 21, 2023, by ex parte motion of Plaintiff, this court continued the trial date to March 03, 2025.

Defendant has been unrepresented by counsel since June 2, 2023, when this court granted his former attorney’s motion to withdraw. Prior to that point and continuing thereafter, Defendant has failed to participate in discovery. Despite the imposition of monetary sanctions, these discovery abuses continue.

Based on Defendant’s failure to respond to discovery in violation of court orders, failure to appear at recent hearings, and failure to oppose this motion, it is unclear if Defendant is still defending this action. If nothing else, this evidences Defendant’s willful indifference to this court’s orders.

Accordingly, Plaintiff’s Motion for Terminating Sanctions is GRANTED. Defendant’s Answer to the First Amended Complaint is ordered stricken and default is entered.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.