Judge: Richard S. Whitney, Case: 37-2019-00046807-CU-PA-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 19, 2023

10/20/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2019-00046807-CU-PA-CTL HARRIS VS NAVA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF TANYA HARRIS' MOTION FOR TERMINATING SANCTIONS FOR DISCOVERY ABUSE AND IMPOSITION OF MONETARY SANCTIONS is GRANTED, in part, and continued in part.

Following Defendant JAVIER URRUTIA NAVA's ('Defendant') failure to comply with this Court's order granting Plaintiff TANYA HARRIS' ('Plaintiff') motions to compel discovery, Plaintiff seeks terminating sanctions as well as monetary sanctions.

The Court has authority to issue terminating sanctions for discovery abuses; however, '[b]ecause terminating sanctions are the most 'drastic' penalty, they are typically a 'last resort' to be 'used sparingly.'' (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1118 [Citation omitted].) Notwithstanding, 'the imposition of lesser sanctions is 'not an absolute prerequisite' to the imposition of terminating sanctions for violation of a court order.' (Id. [Citation omitted].) [S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective.

(Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191–192.) Defendant's counsel again explains that counsel has been unable to communicate with Defendant because Defendant was deported. While Plaintiff objects to Sean P. Garretty's declaration, this is not an evidentiary hearing and Sean P. Garretty is an officer of the court. Further, Defendant's counsel provides the declaration of Jay Nunez, who declared in October of 2022 that Defendant had informed him that Defendant was in the process of being deported and that he would not have a phone or internet. Sean P. Garretty indicates an investigator he hired found Defendant's son who 'confirmed that Mr. Nava had been deported to Mexico.' (Decl. Garretty, ¶ 6.) Defendant's counsel does not state whether Defendant's son provided any manner in which Defendant could be contacted. While the Court takes Mr. Garretty at his word, Plaintiff should not be punished for Defendant's failure to provide his attorney with a means of contacting him.

It appears Defendant's failure to comply has not necessarily been based on Defendant willfully ignoring this Court's order, but Defendant counsel's inability to contact Defendant to complete the discovery requests. '[A] penalty as severe as dismissal or default is not authorized where noncompliance with Calendar No.: Event ID:  TENTATIVE RULINGS

3001838  57 CASE NUMBER: CASE TITLE:  HARRIS VS NAVA [IMAGED]  37-2019-00046807-CU-PA-CTL discovery is caused by an inability to comply rather than willfulness or bad faith.' (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707.) Given Defendant's counsel's representations the Court cannot conclude the Defendant has acted willfully in failing to comply with this Court's order. Further, lesser sanctions would not work as Defendant would, at this point, not know about them. Plaintiff does not have evidence that Defendant has acted in bad faith, just that he has not responded, which is explained by Defendant's deportation.

However, it would be unjust to require Plaintiff to entirely bear the burden of Defendant's failures to comply with discovery and this Court's order. Importantly, Defendant's insurer, Allstate, has moved to intervene. Presumably, it is possible to locate Defendant. Rather than allow Defendant to cause prejudice to Plaintiff and to punish Defendant when he is not fully aware of the happenings in this litigation, the Court elects to award sanctions in the amount of $2,000 against Defendant that will be held in abeyance until after the Court considers Allstate's motion to intervene. Defendant's counsel will have until November 17, 2023, at 10:30 am to locate Defendant so that Defendant can comply with this Court's orders. If Defendant's counsel does not locate Defendant, then this Court does not see an option other than to award the monetary sanctions and to grant the request for terminating sanctions. The hearing is continued until November 17, 2023, at 10:30 am.

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