Judge Thomas D. Long, Case 19STCV44908 2022-08-04 Tentative Ruling

On January 30, 2020, Plaintiff Sumalai Sapphaithoon filed a first amended complaint against Defendants Ampaunchit Wiwatniwong aka Posey Chan (“Chan”), Bunthiwa Sae Tang, and Joy King. Plaintiff later dismissed King. On June 21, 2022, Plaintiff filed a motion for terminating sanctions and monetary sanctions against Chan. Chan did not file an opposition. On July 27, 2022, Plaintiff filed a second amended complaint

Plaintiff seeks a terminating sanction Chan’s answer and entering default against her due to misuse of the discovery process. A court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failing to respond to discovery, unjustifiably making unmeritorious objections to discovery, and 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.’ [Citation.] 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, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)

Plaintiff notes that Chan failed to respond to a July 17, 2020 set of special interrogatories and a March 8, 2022 set of form interrogatories and inspection demands. (Motion at p. 3; Walker Decl., Exs. A, C, D.) Plaintiff filed motions to compel, which Chan failed to oppose. The Court granted the motions on May 18, 2022 and ordered Chan to serve verified responses without objections and pay sanctions in the amount of $1,120.00 within 20 days. As of June 21, 2022, Chan has not complied. (Walker Decl. ¶ 21.) According to Plaintiff, at Chan’s May 26, 2022 deposition, Chan refused to provide straightforward answers, and she was combative and uncooperative. (Walker Decl. ¶ 12.) Chan interrupted Plaintiff’s counsel, did not give straightforward answers to “yes or no” questions, did not bring the documents listed in the deposition notice, and yelled. (Id. at ¶¶ 13-18.) After the deposition was adjourned, Chan refused to discuss the motions in limine with Plaintiff’s counsel. (Id. at ¶ 19.)

As of the date Plaintiff filed this motion, Chan’s compliance with the May 18, 2022 order was only two weeks overdue. Plaintiff has not yet sought any other relief regarding the deposition. Under the totality of the circumstances, the Court cannot conclude that less severe sanctions would be ineffective and that terminating sanctions are warranted. If Chan still has not complied with the Court’s May 18, 2022 order and if Plaintiff believes she is entitled to further depose Chan, Plaintiff may pursue other relief through the appropriate discovery motions.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court