Judge: William A. Crowfoot, Case: 20STCV17983, Date: 2023-01-12 Tentative Ruling

Case Number: 20STCV17983    Hearing Date: January 12, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 12, 2020, Plaintiff Jeremy Ray Montoya (“Plaintiff”) filed a complaint against Defendant Juan Ortiz a.k.a. Juan F Ortiz (“Defendant”) alleging general negligence and motor vehicle negligence.  The action arises from a collision between Plaintiff as he was riding his bicycle and Defendant who was operating a motor vehicle on or about May 25, 2018.

          On November 8, 2022, the Court granted Defendant’s motion to compel Plaintiff’s appearance at deposition.  The Court ordered Plaintiff to appear for deposition within 20 days from the November 8, 2022, hearing date.  Defendants served notice of the Plaintiff’s deposition for November 21, 2022.  However, Plaintiff has failed to attend the November 21, 2022, deposition.

          On December 6, 2022, Defendant Juan Ortiz (“Defendant”) filed a motion for an order to dismiss the Plaintiff’s lawsuit for failure to attend his Court ordered deposition.  Defendant’s motion is made pursuant to CCP sections 2023.030(c)(d)(3) and 2025.010.

          No opposition has been filed.

II.      LEGAL STANDARDS

                Code of Civil Procedure section 2023.010 provides that disobeying a court order to provide discovery is a misuse of discovery.  (Code Civ. Proc., § 2023.010(g).)  Code of Civil Procedure section 2023.030 authorizes the court to impose a monetary sanction, issue sanction, evidence sanction, or terminating sanction against any party who engages in conduct that is misuse of discovery.  (Id. § 2023.030(a)-(d).)  A court may impose a terminating sanction by ordering (1) the striking out of pleadings or parts of pleadings; (2) a stay of further proceedings by that party until an order for discovery is obeyed; (3) dismissal of the action or any part of the action of that party; or (4) a judgment by default against the party.  (Id. § 2023.030(d).)  Code of Civil Procedure section 2025.450 further authorizes the court to impose sanctions, including issue sanctions, evidence sanctions, monetary sanction, or terminating sanctions against a party deponent who fails to obey an order compelling attendance.  (Code Civ. Proc. § 2025.450(h).)  A court has broad discretion in selecting the appropriate penalty.  (See Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)  Courts have recognized the terminating sanction as a drastic penalty that should be used sparingly because the sanction “eliminates a party’s fundamental right to a trial, thus implicating due process rights.”  (Id.) 

III.     DISCUSSION

          Defendant moves the Court to dismiss the complaint because Plaintiff failed to comply with the Court’s November 8, 2022, order, and Plaintiff failed to attend his deposition on November 21, 2022.  (Declaration of Arnold J. Alban ¶¶ 10-11.)  Attached to Defendant’s motion are a copy of the notice of November 8 ruling, notice of the Plaintiff’s deposition on November 21, and the court reporter’s affidavit of non-appearance.  (Exhibits “A”, “C” and “B.”) Plaintiff has not filed an opposition to the instant motion and explained to the Court why terminating sanctions are not appropriate.  Based on the foregoing, the Court finds that Defendant has presented sufficient evidence to show that terminating sanctions are appropriate.  Accordingly, Defendant’s motion to dismiss is GRANTED.

IV.     CONCLUSION

          Defendant’s motion to dismiss is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.