Case Number: 18STLC07442 Hearing Date: December 17, 2019 Dept: 94

MOTION FOR TERMINATING SANCTIONS AND MONETARY SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

Defendants’ Jong Ok Lee and Jin Uk Kim’s Request for Monetary Sanctions is DENIED. Defendant’s Motion for Terminating Sanctions is CONTINUED to ­­­­­FEB. 25, 2020, at 10:30 in Department 94.

ANALYSIS:

I. Background

On May 18, 2018, Plaintiff Han Kyung Koo (“Plaintiff”) filed this personal injury action against Defendants Jin Uk Kim and Jong Ok Lee (collectively, “Defendants”) in connection with a bicycle-vehicle accident.

On August 19, 2019, Defendants moved the court for an Order Compelling Plaintiff’s Attendance at Deposition and for Monetary Sanctions. (Bui Decl., ¶ 2.) Defendants presented evidence of Plaintiff’s repeated failure to appear for scheduled depositions. (8/19/2019 Minute Order.) Specifically, Plaintiff was noticed for deposition on March 5, 2019, but rescheduled to March 18, 2019 at his request. (Id.) On March 15, 2019, Plaintiff cancelled the March 18 deposition due to illness and Defense counsel re-noticed the deposition for April 25, 2019. (Id.) On April 24, 2019, Defense counsel was informed Plaintiff would not attend the April 25th deposition because Plaintiff’s counsel could not locate Plaintiff. (Id.)

The Court granted Defendants’ Motion for an Order Compelling Plaintiff Attendance at deposition and for Monetary Sanctions. (Id.) Plaintiff was ordered to appear for his deposition on August 29, 2019 and Plaintiff and his counsel were ordered to pay sanctions in the amount of $710.00 to Defendants within 30 days. (Id.) Defendants served Plaintiff with a Notice of Taking Deposition of Plaintiff scheduled for August 29, 2019. (Bui Decl., ¶ 5, Exh. B.) On August 28, 2019, Plaintiff’s counsel informed Defendants via voicemail that Plaintiff would not attend the August 29th deposition due to illness. (Id., ¶ 7.) Defense counsel re-noticed the deposition for September 4, 2019. (Id., ¶ 8, Exh. D.) On September 3, 2019, Plaintiff’s counsel informed Defendants that Plaintiff would not appear for the September 4th deposition as because Plaintiff’s counsel was unable to locate Plaintiff. (Id., ¶ 10, Exh. G.) Plaintiff did not appear for deposition on September 4th. (Id., ¶ 12, Exh. I.)

On September 19, 2019, Defendants filed this Notice of Motion and Motion for Terminating Sanctions and Monetary Sanctions (the “Motion”) requesting $1,225 in attorneys’ fees and dismissal of Plaintiff’s complaint with prejudice.

II. Discussion

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

“The court may impose a terminating sanction by one of the following orders:

An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

An order staying further proceedings by that party until an order for discovery is obeyed.

An order dismissing the action, or any part of the action, of that party.

An order rendering a judgment by default against that party.”

(Code Civ. Proc., § 2023.030, subd. (d).)

Terminating Sanctions

While “sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort,” “even under the Civil Discovery Act’s incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective. [Citations.]” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191-192.) For the reasons stated below, the Court finds that lesser sanctions would be ineffective in compelling Plaintiff to appear for deposition.

In view of the totality of the circumstances, the Court cannot reasonably interpret Plaintiff’s pattern of non-compliance as anything less than willful. There appears to be a parallel in excuses and behavior on Plaintiff’s part. Plaintiff’s March 18, 2019 and August 29, 2019 depositions were cancelled due to illness, and his April 25, 2019 and September 4, 2019 depositions were cancelled because Plaintiff’s counsel could not locate Plaintiff. Plaintiff has now failed to appear at five (5) scheduled depositions. Indeed, it appears that Plaintiff has no intention of complying with the Court’s order or that he is interested in prosecuting his claims against Defendants. “The court [is] not required to allow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280.)

The Court, therefore, finds that terminating sanctions are appropriate here.

Monetary Sanctions

Plaintiff argues the Court is required to impose monetary sanctions pursuant to Code of Civil Procedure section 2023.290. However, no such section exists.

In any case, the Court declines to grant any further monetary sanctions as it would be futile given that terminating sanctions have been granted. (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259 [“Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party.”].)

Notice

Code of Civil Procedure section 1005, subdivision (b) requires that all moving and supporting papers of a motion be served and filed at least 16 days, or 21 days if service was effectuated by mail, before the hearing. (Italics added.)

Here, Defendants addressed the Notice and Motion to Plaintiff’s counsel at 4311 Wilshire Blvd., Suite 305, Los Angeles, CA 90010. (9/19/2019 POS.) However, Defendants submit as evidence an email in which Defense counsel asks Plaintiff’s counsel for an updated address as her office received notice from U.S.P.S. Plaintiff’s counsel was no longer at the 4311 Wilshire Blvd. address. (Bui Decl., ¶ 11, Exh. G.) Defendants also submit a copy of correspondence apparently addressed to 4311 Wilshire address was returned as unable to forward. (Id., Exh. H.) Further, Defense counsel states in her declaration that she conducted an “Attorney’s Search” on the California State Bar website to obtain the address on record for Plaintiff’s counsel to serve the Motion, which is listed as 1057 Oxford Ave. Apt. C, Los Angeles, CA 90006.

Thus, because it appears that Plaintiff’s counsel served this Notice and Motion at the 4311 Wilshire Blvd. address that Defendants knew was no longer a correct address, Defendants’ own evidence suggests that Plaintiff did not receive proper notice of the Motion.

III. Conclusion & Order

In light of the foregoing, Defendants’ Jong Ok Lee and Jin Uk Kim’s Request for Monetary Sanctions is DENIED. Defendant’s Motion for Terminating Sanctions is CONTINUED to ­­­­­FEB. 25, 2020, at 10:30 in Department 94.

Defendants are ordered to provide a proof of service with an updated address for Plaintiff’s counsel.

Moving party is ordered to give notice.