Judge: Serena R. Murillo, Case: 20STCV29601, Date: 2023-05-04 Tentative Ruling

Case Number: 20STCV29601    Hearing Date: May 4, 2023    Dept: 29

TENTATIVE

Defendant’s motion for terminating sanctions is CONTINUED to May 25, 2023 at 1:30 p.m.

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 on the ground that Plaintiff failed to comply with the Court's December 8, 2022 order compelling Plaintiff to appear for deposition.

On December 8, 2022, this Court granted Defendant’s Motion to Compel and ordered Plaintiff to appear for deposition within 30 days. (12/8/2022 Minute Order.) Following the Court’s order, Defendant re-noticed the deposition and document request for February 23, 2023, and despite the Court’s order, Plaintiff failed to appear. (Reader Decl. ¶ 8.)

However, the matter must be continued for two reasons. First, there is no evidence that Defendant gave notice of the Court’s December 8, 2022 ruling to Plaintiff, as she was not present at that hearing. Second, Defendant served Plaintiff’s former counsel with notice of this motion, but not Plaintiff herself. The Court observes that Plaintiff’s former counsel was relieved as counsel in September of 2022, long before this motion was filed. Once Defendant serves Plaintiff with this motion, presents evidence that it gave notice of December 8, 2022 hearing to Plaintiff, and gives Plaintiff an opportunity to appear for deposition, armed with the knowledge that the case may be dismissed if she does not, and if Plaintiff still fails to appear for deposition, the Court is inclined to grant this motion for terminating sanctions.

Sanctions will be addressed at the next hearing.

Conclusion

Based on the foregoing, Defendant’s motion for terminating sanctions dismissing Plaintiff’s complaint against Defendant is CONTINUED.

Defendant is ordered to give notice.