Judge: Walter P. Schwarm, Case: 30-2019-01113111, Date: 2022-09-27 Tentative Ruling

Defendant’s (Roswitha Beier) unopposed Motion to Dismiss the Case in Its Entirety Pursuant to Plaintiff In Pro Per’s Violation of the Local Rules of the Orange County Superior Court, and California Code of Civil Procedure, or, in the Alternative, Vacate the July 29, 2022 Trial Date (Motion), filed on 7-25-22 under ROA No. 177 as an Ex Parte Application, is DENIED.

Code of Civil Procedure section 1005, subdivision (b), states, “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”

Local Rule 381 entitled “Sanctions” states: “Upon notice and after hearing, if the court finds any counsel, a party represented by counsel, or a self-represented party has failed to comply with these local court rules or has not proceeded with due diligence in preparing the case for trial, the court, on motion of a party or on its own motion, may: ¶ A. Strike all or any part of any pleading of that party; ¶ B. Dismiss the action or proceeding or any part thereof; ¶ C. Enter a judgment by default against that party; ¶ D. Impose other penalties of a lesser nature as provided by law, and/or; ¶ E. Order that party or his or her counsel to pay the moving party the reasonable expenses incurred in making, and/or appearing at the hearing of, the motion, including reasonable attorney fees.”

Electronic Funds Solutions, LLC v. Murphy, (2003) 134 Cal.App. 4th 1161, 1183 (Electronic Funds), explains, “Former section 2023, subdivision (a), provided that disobedience of a court order constituted a misuse of the discovery process, for which the court could impose sanctions, including a terminating sanction such as dismissal. (§ 2023, subd. (b).) ‘Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. [Citations.] For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that “ ‘ “are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” ’ ” ’ [Citation.] In other words, discovery sanctions exist ‘not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court.’ [Citation.]” (Italics in Electronic Funds.)

On 7-21-22, Defendant appeared ex parte and presented this motion. The court denied it without prejudice to Defendant bringing a noticed motion pursuant to Local Rule section 381. (7-21-22 Minute Order.)

On 7-26-22, Defendant brought this Motion as an Ex Parte Application. The court continued the Motion to 7-29-22.  (7-26-22 Minute Order.) On 7-29-22, the court deemed the Ex Parte Application as the moving papers, vacated the trial date, and ordered Defendant to re-serve the Ex Parte Application on Plaintiff (Shannon Burns). (7-29-22 Minute Order.) No one was ordered to serve Plaintiff a copy of the Minute Order.

On 8-1-22, Defendant served the Motion on Plaintiff by mail and electronic service. It is unclear whether Plaintiff actually received notice of the 9-27-22 hearing date. Although the Ex Parte Application contained a “Notice,” it noticed the hearing for 7-26-22.  It is unclear whether Plaintiff received 16 court days’ notice of the hearing date and was provided an opportunity to respond.  Therefore, the court DENIES the Motion for failing to provide adequate notice of the 9-27-22 hearing.

Assuming that notice was proper, the Motion seeks a dismissal “. . . for Plaintiff’s violation of the local rules or Orange County Superior Court, particularly Rules 317 and 381, the California Rules of Court, the California Code of Civil Procedure, or in the alternative, vacate the July 29, 2022 trial date.” (Motion; 8:18-22.) The court already vacated the trial date. (7-29-22 Minute Order.) Thus, the only relief Defendant is seeking is a dismissal of the case.

Defendant makes no case as to why a lesser sanction would not vindicate the court’s authority to require Plaintiff’s compliance with Local Rule 317. Dismissal is an extreme remedy for Plaintiff’s noncompliance when the court can order Plaintiff’s compliance before the case is assigned for trial.

Based on the above, the court exercises its discretion and DENIES Defendant’s (Roswitha Beier) Motion to Dismiss the Case in Its Entirety Pursuant to Plaintiff In Pro Per’s Violation of the Local Rules of the Orange County Superior Court, and California Code of Civil Procedure, or, in the Alternative, Vacate the July 29, 2022 Trial Date filed on 7-25-22 under ROA No. 177 as an Ex Parte Application.

The court will set a trial date at the hearing on 9-27-22.

Defendant to give notice.