Judge: Serena R. Murillo, Case: 21STCV27810, Date: 2022-12-14 Tentative Ruling
Case Number: 21STCV27810 Hearing Date: December 14, 2022 Dept: 29
TENTATIVE
Plaintiff Jordyn A. Murray Diaz’s
motion for terminating sanctions against Defendant Patricia Cecilia Pina is DENIED, without prejudice.
Legal Standard
If a party engages in the misuse of the discovery process, the court may
impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., §
2023.030.) “Misuses of the discovery process include … : . . . (d) Failing to
respond or to submit to an authorized method of discovery . . . (g) Disobeying
a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)
“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. Hochman (2000) 77 Cal.App.4th 1225, 1246.)
“Although in extreme cases a court has the authority to order a
terminating sanction as a first measure [citations], a terminating sanction
should generally not be imposed until the court has attempted less severe
alternatives and found them to be unsuccessful and/or the record clearly shows
lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract
Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.)
Discussion
Plaintiff moves for a terminating sanctions order against the Defendant.
Plaintiff’s counsel attests to the following facts. On November 11, 2021,
Plaintiff propounded on Defendant Form Interrogatories (Set One), Request for
Production (Set One), Request for Admissions (Set One), and Special
Interrogatories (Set One). (Motion, Samuel Choo Declaration (“Choo Decl.”), ¶ 2.) However, to date, Defendant has not responded to any of Plaintiff’s
discovery despite Plaintiff having timely responded to all of Defendant’s
discovery requests. (Choo Decl., ¶¶ 2, 3, 6.) Plaintiff filed motions to compel
responses to her discovery requests. (Choo Decl., ¶ 4.) On September 8, 2022,
the Court granted Plaintiff’s motions to compel Defendant’s responses to
Plaintiff’s interrogatories and request for production of documents. (Choo
Decl., ¶ 5.) The Court also granted Plaintiff’s motion to have the truth of the
matters specified in her Requests for Admissions, Set One, admitted. (Choo
Decl., ¶ 5.) In addition to those orders, the Court imposed monetary sanctions
of $1,092, upon Defendant and her counsel jointly and severally, ordering them
to pay the sanctions within 30 days of September 8, 2022 (i.e., October 8,
2022). (Choo Decl., ¶ 5; Exh. 1 – Notice of Ruling.) However, Defendant did not
pay the sanctions until November 7, 2022. (Choo Decl., ¶ 7.)
For those reasons, Plaintiff argues, a
terminating sanction in the form of striking Defendant’s answer and an entry of
default in Plaintiff’s favor is warranted because Defendant has refused to
participate in the discovery process. (Choo Decl., ¶ 9.)
While the Court admonishes Defendant for the
misuse of the discovery process, it finds that terminating sanctions are not
warranted at this time. Recently, on October 5, 2022, Defendant filed an ex
parte application to continue trial. (Evid. Code, § 452, subd. (d) [providing that a court
may take judicial notice of records of any court of this state].) In the ex parte application, defense counsel explained that due to the
unavailability of the prior handling trial attorney, this case was reassigned
to him, and he needs additional time to prepare for trial, including
“requesting updates to discovery responses ….” (Ex Parte Application,
Declaration of Jeffry Caballero (“Caballero Decl.”), ¶ 3.) Counsel also
informed the Court that his law firm has unexpectedly lost several attorneys in
the preceding two months prior to the filing of the ex parte application.
(Caballero Decl., ¶ 5.) On October 7, 2022, the Court granted the unopposed ex
parte application and continued trial from January 26, 2023, to its current
date, May 5, 2023. (Ex Parte Application, p. 1; October 7 Minute Order, p. 1.)
Therefore, this is not a case where the Defendant has completely abandoned the
case such that the drastic measures of terminating sanctions are warranted. In
fact, Plaintiff’s counsel has testified in his declaration that the Defendant
ultimately paid (albeit late) the entire monetary sanctions ordered by the
Court.
Accordingly, the Court’s tentative is to deny
the motion without prejudice.
Conclusion
Plaintiff Jordyn A. Murray Diaz’s
motion for terminating sanctions against Defendant Patricia Cecilia Pina is DENIED, without prejudice.
Moving party is ordered to give notice.