Judge: Yolanda Orozco, Case: BC703575, Date: 2023-02-23 Tentative Ruling
Case Number: BC703575 Hearing Date: February 23, 2023 Dept: 31
MOTION FOR
TERMINATING SANCTIONS
DISMISSING ACTION
tentative ruling
Cross-Defendant Greenleaf
Engineering, Inc.’s Motion for Terminating Sanctions Dismissing Plaintiffs’
action is GRANTED.
Background
On April 25, 2018, Plaintiffs Keltzey Pierre and Jean Enock filed the instant action against United Contractors; John Griffin; Edgar Manalo; and Does 1-50. The Complaint asserts causes of action for:
1)
Property Damages;
2)
Negligence – Violation of Section 3307 of the
California Building Code; and
3) Loss of Prospective Economic Advantage.
On February 07, 2020, Defendant United Contractors filed a Cross-Complaint against Greenleaf Engineering, Inc., et al. for indemnification, equitable indemnification, apportionment of fault, and declaratory relief.
On November 12, 2020, Cross-Defendant Greenleaf Engineering (“Greenleaf”) filed a Cross-Complaint against Zoes 1-50 for equitable indemnity, apportionment, and declaratory relief.
On March 25, 2022, Plaintiff Jean Enock filed a Substitution of Attorney form to represent himself. Plaintiff Keltzey Pierre filed a Substitution of Attorney form to represent herself, on March 29, 2022.
On December 09, 2022, this Court granted Cross-Defendant Greenleaf’s Motion for monetary sanctions against Plaintiffs in the amount of $4,428.65.
On October 25, 2022, Cross-Defendant Greenleaf filed a Motion for an Order Imposing Terminating Sanctions and Monetary Sanctions Against Plaintiffs.
On January 26. 2023, Cross-Defendant Greenleaf filed a second motion for terminating sanctions.
Defendant/Cross-Complainant United Contractors filed a joinder to Greenleaf’s Motion.
No opposition has been filed. Cross-Defendant Greenleaf
submitted a notice of non-opposition on February 26, 2023.
Legal Standard
Code of Civil
Procedure section 2023.030 permits the Court to impose terminating sanctions
for discovery misuses, which are defined by section 2023.010 of the Code of
Civil Procedure to include the failure to respond to an authorized method of
discovery and the failure to comply with a Court discovery order. The
Discovery Act defines misuse of discovery as including (1) a failure to respond
or to submit to an authorized method of discovery (Code Civ. Proc., § 2023.010,
subd. (d))
and (2) disobedience to a court order to provide discovery (Code Civ. Proc., §
2023.010, subd. (g)).¿
¿
Under California
law, a discovery order cannot go further than is necessary to accomplish the
purpose of discovery. (Newland v. Superior Court (1995) 40
Cal.App.4th 608, 613.) The purpose of discovery sanctions is to prevent abuse
of the discovery process and correct the problem presented.¿ (McGinty v.
Superior Court (1994) 26 Cal.App.4th 204, 210.)¿¿
¿
In addition, an
order imposing terminating sanctions must be preceded by the disobedience of an
order compelling a party to do that which the party should have done in the
first instance.¿ (Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015,
1021.)¿ Accordingly, there are grounds for terminating sanctions when a party
fails to comply with discovery and fails to comply with Court orders regarding
discovery.¿¿
Discussion
Cross-Defendant Greenleaf Engineering, Inc. (“Greenleaf”), joined by Cross-Complainant United Contractors Inc. (“United Contractors”), seeks an order issuing a terminating sanction under the Code of Civil Procedure section 2030.030 dismissing Plaintiffs’ action.
On December 08, 2022, the Court awarded Greenleaf monetary sanctions in the amount of $4,428,65 and ordered Plaintiffs’ deposition to take place and documents produced within 45 days. (See 12/09/22 Min. Or.) Greenleaf also asserts that the Plaintiffs failed to provide a response to the request for the Production of Documents and have made no requests for an extension of time to respond. (Shoneman Decl. ¶¶ 3, 4.)
Greenleaf states that despite four attempts to secure a deposition date for a remote deposition, no deposition has occurred, and no response has been provided. (Mot. Ex. A.) This was in violation of the December 08, 2022 Court order. Greenleaf also notes that on August 22, 2022, this Court had already granted an order compelling Plaintiffs’ deposition and document production. (See Min. Or. 08/22/22.)
Accordingly, the Plaintiffs have already violated two Court orders and have also failed to pay the monetary sanctions assessed against them. For this reason, Greenleaf asserts that an order dismissing the action is needed to avoid further undue prejudice and financial detriment to Greenleaf.
Furthermore, the five-year statute to prosecute this action is approaching and Plaintiffs have failed to respond to discovery or prosecute this action, despite being given the opportunity. This action was filed on April 25, 2018 and the trial is set for March 06, 2023, yet plaintiffs have still not been deposed.
Greenleaf and United Contractor, Inc. (by way of joinder), assert that they are unwilling to waive the five-year statute and this action should be dismissed due to Plaintiff’s failure to submit to any method of discovery and violation of two Court orders. Monetary sanctions have also proven to be ineffective and terminating sanctions are necessary because the lack of discovery has detrimentally affected Greenleaf’s ability to defend itself.
Plaintiffs have previously represented to the Court that they would seek new counsel, yet no substitution of attorney form has been filed reflecting the retention of counsel. Moreover, Plaintiffs have been properly served with notice of this Motion both by electronic service and U.S. mail, yet no opposition has been filed.
Accordingly, Greenleaf’s request to dismiss the action pursuant to section 2023.030 subdivision (d)(3) is GRANTED.
Conclusion
Cross-Defendant Greenleaf
Engineering, Inc.’s Motion for Terminating Sanctions Dismissing Plaintiffs’ action
is GRANTED. Plaintiffs’ Complaint is dismissed with prejudice.
Moving party to give notice.