Judge: Serena R. Murillo, Case: 20STCV05758, Date: 2023-01-20 Tentative Ruling

Case Number: 20STCV05758    Hearing Date: January 20, 2023    Dept: 29

TENTATIVE

Defendant Trinidad Acosta’s motion for terminating sanctions is GRANTED. The Court orders Plaintiff Ashley Fabian’s complaint against Defendant Acosta dismissed.

Legal Standard

CCP section 2023.030 provides that, "[t]o the extent authorized by the chapter governing any particular discovery method..., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose... [monetary, evidence, and terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process...." CCP section 2023.010 provides that "[m]issues of the discovery process include, but are not limited to, the following:... (d) Failing to respond or to submit to an authorized method of discovery.... (g) Disobeying a court order to provide discovery...."

"The trial court may order a terminating sanction for discovery abuse 'after considering 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.'" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246).) "Generally, '[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.'" (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

"Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders." (Id. (citing Lang, supra, 77 Cal.App.4th at pp. 1244- 1246); see, e.g., Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal App 3d 481, 491 (disapproved on other grounds in Garcia v. McCucchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

Discussion

Defendant moves for terminating sanctions against Plaintiff Ashley Fabian (“Plaintiff”) on the ground that Plaintiff failed to comply with the Court's November 4, 2022 order to appear for deposition within 30 days.

On November 4, 2022, this Court granted Defendant’s motion to compel Plaintiff’s deposition, and ordered Plaintiff to appear for deposition. (11/4/22 Minute Order.) On November 5, 2022, Defendant filed and served Plaintiff with a Notice of Ruling of the foregoing Court ruling. (Marder Decl., Exh. B.) To date, Plaintiff has not appeared for deposition. (Id., ¶ 4; Exh. D “Certificate of Nonappearance”.)

The Court finds terminating sanctions action against Plaintiff is appropriate. Plaintiff has failed to appear for deposition, and failed to comply with the Court's order to appear for deposition. Thus, it appears imposing less severe sanctions against Plaintiff would not produce compliance, and that Plaintiff is disinterested in prosecuting her case.

Conclusion

Based on the foregoing, Defendant’s motion for terminating sanctions is GRANTED. The Court orders Plaintiff Ashley Fabian’s complaint against Defendant Acosta dismissed.

Moving party is ordered to give notice.