Case Number: 18STCV10293 Hearing Date: February 18, 2020 Dept: 28

Motion for Terminating Sanctions

Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On December 26, 2018, Plaintiff David Bell (“Plaintiff”) filed a complaint against Defendant Michael B. Angelo (“Defendant”) alleging negligence for an automobile collision that occurred on May 30, 2017.

On November 1, 2019, the Court ordered Plaintiff to appear at a deposition within 30 days of the ruling.

On December 4, 2019, Defendant filed a motion for terminating sanctions against Plaintiff pursuant to California Code of Civil Procedure section 2023.030.

Trial is set for June 24, 2020.

PARTY’S REQUEST

Defendant asks the Court to impose terminating sanctions against Plaintiff for Plaintiff’s failure to comply with the Court’s November 1, 2019 order.

LEGAL STANDARD

If a party fails to comply with a court order compelling a further response to a request for production, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc. § 2031.310, subd. (i).) California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (g) Disobeying a court order to provide discovery. . . .”

“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 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “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, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los¿Defensores, 223 Cal.App.4th at p. 390 (citing¿Lang, supra, 77 Cal.App.4th at pp. 1244-1246 (discussing cases));¿see, e.g.,¿Collisson¿& Kaplan v.¿Hartunian¿(1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery);¿Laguna Auto Body v. Farmers Ins. Exchange¿(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in¿Garcia v. McCutchen¿(1997) 16 Cal.4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

DISCUSSION

On November 1, 2019, the Court ordered Plaintiff to appear at a deposition within 30 days of the ruling. (Mahlstedt Decl., ¶ 3, Exh. A.) On November 4, 2019, Defendant served a deposition notice on Plaintiff setting the deposition for November 25, 2019. (Mahlstedt Decl., ¶ 4, Exh. B.) Plaintiff advised Defendant that Plaintiff was not going to appear for his deposition because Plaintiff was traveling. (Mahlstedt Decl., ¶ 5.) Plaintiff failed to appear for his deposition. (Mahlstedt Decl., ¶ 6, Exh. C.)

The Court finds that Plaintiff has disobeyed the Court’s November 1, 2019. As such, terminating sanctions are properly imposed. Plaintiff argues that terminating sanctions should not be issued for Plaintiff’s failure to appear his deposition while Plaintiff was traveling during the Thanksgiving holiday. The Court may have been more sympathetic if Plaintiff reached out to Defendant in an attempt to reschedule the deposition as soon as Plaintiff was put on notice of his deposition earlier in November. However, Plaintiff canceled the deposition at the 11th hour and now demands sympathy for Plaintiff’s abuse of the discovery process. However, the Court is not sympathetic.

CONCLUSION

The motion is GRANTED.

The complaint is DISMISSED.

Defendant is ordered to give notice of this ruling.