Case Number: BC501416    Hearing Date: August 01, 2014    Dept: 32

CASE NAME: Jazmyne Gurrola, et al. v. Los Angeles Unified School District
CASE NO.: BC501416
HEARING DATE: 08/01/14
DEPARTMENT: 32
CALENDAR NO.: 4
SUBJECT: Motion for Terminating Sanctions
MOVING PARTY: Defendants Los Angeles Unified School District (“LAUSD”) and Marta Jevenois
RESP. PARTY: Plaintiff Carlos Soto

COURT’S TENTATIVE RULING

Motion for Terminating Sanctions GRANTED.

BACKGROUND

Plaintiffs Jazmyne Gurrola, Peter Quintero, Mildred Rodriguez, and Carlos Soto, minors through their Guardians ad Litem, allege that they were students at Trinity Elementary School during the 2011 to 2012 school year and, on several occasions, they were physically and/or sexually abused by Defendant Cardiel. Plaintiffs allege that, during the preceding year, Defendants LAUSD and Jevenois were made aware of accusations against Cardiel through a report made by another parent. Plaintiffs allege that a teacher’s assistant and a different parent reported Cardiel’s conduct to Jevenois; however, no action was taken in response thereto. This motion is directed only to Plaintiff Carlos Soto (“Plaintiff” or “Soto”) who is prosecuting this action through his guardian ad litem, his mother Isabel Torres.

On May 16, 2014, the court (perJudge Mary H. Strobel) granted Defendants motion to compel Plaintiff Carlos Soto to appear for deposition. The court ordered Soto to appear for deposition on May 28, 2014. Plaintiff’s counsel has acknowledged in the Opposition that counsel lost contact with Ms. Torres in January, 2014 and Plaintiff did not appear at his court ordered deposition. Trial is scheduled to commence on August 19, 2014.

ANALYSIS

Defendants’ Request for Judicial Notice

Exhibits A-B – GRANTED. The court may take judicial notice of court filings and rulings in this action.

Motion for Terminating Sanctions

As noted above, Plaintiff did not appear at his court ordered deposition. It is a misuse of the discovery process to fail “to respond or to submit to an authorized method of discovery,” (CCP § 2023.010(d)) or to disobey “a court order to provide discovery.” (CCP § 2023.010(g).) Under CCP § 2023.030, courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions after giving parties proper notice and the opportunity to be heard.

In determining whether terminating sanctions should be imposed, courts consider the totality of the circumstances, including 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.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

On May 16, 2014, the court granted Defendants’ motion to compel Plaintiff Carlos Soto to appear for deposition. The court ordered Soto to appear for deposition on May 28, 2014.The court’s order followed other efforts by Defendands to secure the deposition over an extended period of time. In support of the motion to compel deposition, Defendants submitted evidence that, during extensive meet and confer sessions, Plaintiffs’ counsel indicated that they were unable to locate Soto and his mother Isabel Torres for deposition. (RJN Exh. A, Beanum Decl. ¶¶ 1-17.) Defendants now submit evidence that Soto violated the court’s May 16, 2014 order by failing to appear for his deposition on May 28, 2014. (Mot. Exh. 2.) The evidence reflects that Soto’s mother, Isabel Torres, also did not appear on that date.

A terminating sanction is warranted based on Soto’s failure to appear for deposition after extensive meet and confer efforts and a court order compelling him to appear. In opposition, Plaintiffs indicate that Soto is six years old; that Plaintiffs’ counsel has lost contact with Soto’s mother (the guardian ad litem); and that counsel needs additional time to locate Soto. Plaintiffs’ counsel made similar representations to the court in opposition to the motion to compel deposition heard on May 16, 2014. It appears that Plaintiffs’ counsel has made no progress in locating Soto and Torres during that time. Trial is scheduled for August 19, 2014, and there is no showing that any further time will result in Soto’s appearance at deposition. Moreover, given the imminent trial date and the fact that the discovery cut off period has passed, Defendants have been seriously prejudiced in their trial preparation by Soto’s failure to appear for deposition.

The motion is GRANTED.