Judge: Stephen I. Goorvitch, Case: 21STCV09737, Date: 2022-10-14 Tentative Ruling
Case Number: 21STCV09737 Hearing Date: October 14, 2022 Dept: 39
Ecro Custom
Furniture, Inc. v. Eric Lavey, et al.
Case No.
21STCV09737
Motion for
Terminating Sanctions
Defendants
move for terminating sanctions, arguing that Plaintiff’s counsel has failed to
prosecute the case; Plaintiff’s counsel served discovery responses nine months
late; and Plaintiff’s counsel has failed to produce evidence of a contractor’s
license, which is required in order to establish standing. Defendants’ counsel also argues that the late
discovery responses have jeopardized their ability to prepare for trial.
The motion
for terminating sanctions is denied. The Court has discretion to impose
terminating sanction when a party willfully disobeys a discovery order. (Code Civ. Proc., §§ 2023.010, subd. (g),
2030.290, subd. (c).) In this case,
however, there has been no such order because Defendants never moved to compel
initial or further responses. Indeed,
Defendants’ counsel could file a motion to compel, and, if it is granted, seek
terminating sanctions for a violation of that order. The Court cannot impose a terminating
sanction just because Plaintiff’s late discovery responses have made it
difficult or impossible to prepare for trial.
The remedy is a trial continuance, not a terminating sanction.
Nor can the Court find willful
misconduct by Plaintiff’s counsel. Defendants’
counsel cites Plaintiff’s counsel’s conduct in other cases, but that is not
relevant to this case and this motion. Based
upon the foregoing, the Court orders as follows:
1. Defendants’
motion for terminating sanctions is denied.
2. This
order is without prejudice to Defendants’ counsel filing motions to compel and
then seeking a terminating sanction for any violation of those orders.
3. This
order is without prejudice to Defendants seeking a trial continuance.
4. Defendants’
counsel shall provide notice and file proof of such with the Court.