Case Number: BC721468 Hearing Date: February 28, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Department 32

luis damian robles,

Plaintiff,

v.

francisco barajas, jr., et al.,

Defendants.

Case No.: BC721468

Hearing Date: February 28, 2020

[TENTATIVE] order RE:

MOTION for terminating sanctions

NOTICE

The Court continues the hearing on this motion to the final status conference: March 9, 2020, at 10:00 a.m. If the deposition of Plaintiff is not completed on or before March 8, 2020, the Court will consider terminating sanctions. If the deposition of Plaintiff is completed on or before March 8, 2020, the following would be the Court’s tentative order. If the deposition of Plaintiff is completed on or before March 8, 2020, and Defendants require additional time to prepare for trial, the Court intends to hold a trial setting conference on March 9, 2020, at 10:00 a.m. Any party who does not appear at the final statute conference, motions hearing, and trial setting conference on March 9, 2020, at 10:00 a.m. shall waive their right to be heard and shall submit to any decision the Court makes on any of these issues.

TENTATIVE ORDER IF DEPOSITION COMPLETED ON OR BEFORE MARCH 8

Defendants Francisco Barajas, Jr. and Letitia Barajas (“Defendants”) move to dismiss the complaint of Plaintiff Luis Damian Robles (“Plaintiff”) as a terminating sanction for failing to submit to a deposition, as ordered by the Court. In the alternative, Defendants seek sanctions in the amount of $1,109.15 against Plaintiff and counsel-of-record.

The Court has discretion to impose terminating sanction when a party willfully disobeys a discovery order. (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c).) The Court may impose a terminating sanction by striking a party’s pleading. (Code Civ. Proc., § 2023.030, subd. (d)(1).)

In its order of October 18, 2019, the Court ordered Plaintiff to appear for a deposition on October 30, 2019 at Defendant’s counsel’s office. (Declaration of Stephen Hsu, ¶ 12.) To date, Plaintiff has not appeared for a deposition. (Id., ¶ 13.) Nor has Plaintiff or counsel-of-record paid the prior monetary sanctions as ordered by the Court. (Ibid.) Trial remains set for March 11, 2020.

Plaintiff provides no good cause for the delays in taking his deposition. The memorandum of points and authorities represents that there have been a family emergency involving Plaintiff’s counsel’s son. The Court does not necessarily need specific information concerning the nature of the purported family emergency, as the Court respects parties’ privacy. Nevertheless, Counsel’s declaration does not contain the same representation as the memorandum of points and authorities, so this representation is not properly before the Court. Nor does Plaintiff’s counsel explain why this issue prevented the deposition from occurring over the course of several months.

Plaintiff’s counsel states that he contacted Defendants’ counsel on three occasions (specifically, on February 11, 12, and 13, 2020) to provide dates for the deposition. Specifically, Plaintiff has proposed February 27, February 28, and March 3, 2020. (Declaration of Jonathan Kashani, Exh. D.) Yet, the Court is unclear why Plaintiff’s counsel waited until mid-February to attempt to resolve this issue. It appears to the Court that Plaintiff’s counsel only took the issue seriously after Defendants filed the instant motion (on January 31, 2020).

The Court is required to consider lesser sanctions before imposing a terminating sanction. Prior monetary sanctions were not effective. Nevertheless, a terminating sanction is premature, because Plaintiff’s deposition has been completed in advance of trial. The remedy for any prejudice to Defendants is a continuance, not dismissal. Therefore, the Court imposes monetary sanctions in the amount of $1,109.15 against Plaintiff and Plaintiff’s counsel, jointly and severally, having found no good cause for Plaintiff’s failure to comply with this Court’s order and having found that this motion was necessary in order to facilitate the deposition. The Court finds that this amount is fair and reasonable under the circumstances, considering the work required to file the motion and litigate this issue.

Defendants shall provide notice.

DATED: February 26, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court