Judge Upinder S. Kalra, Case 21STCV32326 2023-04-12 Tentative Ruling

Judge: Upinder S. Kalra, Case: 21STCV32326, Date: 2023-04-12 Tentative Ruling

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Case Number: 21STCV32326 Hearing Date: April 12, 2023 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: April 12, 2023

CASE NAME: Narciso Aparicio, et al. v. Carol Holloway, et al.

CASE NO.: 21STCV32326

MOTION FOR TERMINATING SANCTIONS

MOVING PARTY: Plaintiff Narciso Aparicio

RESPONDING PARTY(S): None as of April 7, 2023.

REQUESTED RELIEF:

1. An order granting terminating sanctions.

TENTATIVE RULING:

1. Motion for Terminating Sanctions is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 31, 2021, Plaintiffs Narciso Aparicio, Librada Barca, Luis Enrique Aparicio, Wilber Aparicio, Erick Aparicio, Govani Aparicio, Magiber Aparicio, and Ashley Aparicio (“Plaintiffs”) filed a complaint against Defendants Carol Holloway and Paul Holloway (“Defendants”.) The complaint alleged two causes of action (1) Negligence, and (2) Tortious Breach of Implied Warranty of Habitability. The complaint alleges that Plaintiffs were tenants of the Subject Property. Defendants represented themselves to be property manager and landlord. The property was infested with vermin and rats, and had water leaks. As a result, Plaintiffs have suffered physical injuries, emotional distress and damage to their personal property.

On August 31, 2022, Natalie Panossian, counsel for Defendant Paul Halloway, filed a Motion to be Relieved as Counsel, which was GRANTED.

On January 24, 2023, Plaintiff Narciso Aparicio filed a Motion for Terminating Sanctions. No Opposition has been filed as of April 7, 2023.

LEGAL STANDARD:

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030, subd. (d).)

ANALYSIS:

Plaintiff moves for terminating sanctions, striking Defendant Holloway’s Answer, and enter default.

Background:

Plaintiff served discovery on Defendant Holloway, and Defendant failed to answer. On September 1, 2022, the Court granted Plaintiff’s motions to compel. Despite this order, Defendant Holloway did not comply and has not complied as of January 24, 2023. In addition to failing to comply with the Court’s order, Defendant has also had various instances of misconduct. For example, Defendant and counsel did not appear at the hearing on their demurrer, which was overruled. Defendant did not appear at a case management conference. In May 2022, Defendant did not reply to discover sent in December 2021. In November 2022, Defendant’s counsel is relived as counsel. In January 2023, Defendant did not appear at the post-mediation status conference.

Here, Plaintiff argues that terminating sanctions are appropriate based on Defendant’s conduct. Defendant has refused to provide responses to court-ordered discovery and has failed to appear at court hearings. The original discovery responses were due in March 2022, and (as of this hearing) it has been over a year without any response. (Motion 3: 4-6.)

The Court finds that terminating sanctions are appropriate. 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.) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id.) Terminating sanctions are to be used sparingly because of the drastic effect of their application. (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191.)

If, however, if 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.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) Here, Defendant Holloway’s conduct is without a doubt willful. Defendant has failed to attend routine court appearances and has failed to respond to basic discovery as well as comply with this Court’s orders. The Court has imposed monetary sanctions to no avail. Defendant has still failed to comply with the Court’s order. In fact, it appears that Defendant has chosen to completely abandoned participation in this litigation. Therefore, Defendant has demonstrated repeated and willful failure to comply with the Court’s order on multiple occasions.

Motion for Terminating Sanction is GRANTED.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion for Terminating Sanctions is GRANTED. The Court declines to impose terminating sanctions. Instead, the Court will entertain argument on issue or evidentiary sanctions at the hearing.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: April 12, 2023 __________________________________ Upinder S. Kalra

Judge of the Superior Court