Ruling
EVA MAYES VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, A CORPORATION, ET AL.
Jul 10, 2024 |
21STCV30905
CASE NUMBER:
21STCV30905
MOTION FOR TERMINATING SANCTIONS
(CCP §§ 2023.010, et seq.)
TENTATIVE RULING
:
Defendant CDC Madison Lomita LLCs Motion for Terminating Sanctions
is GRANTED.
Plaintiff Eva Mayess First Amended Complaint is dismissed with prejudice.
Defendants request for monetary sanctions is also GRANTED in the amount of $2,678.23, to be paid by Plaintiff Eva Mayes within thirty (30) days of the Courts Order.
ANALYSIS:
I.
Background
On August 20, 2021, Plaintiff Eva Mayes (Mayes) filed an action against Defendants The Regents of the University of California (Regents) and UCLA Sky Park Medical Facility (Sky Park) (collectively Defendants)
for general negligence and premises liability.
On November 4, 2022, Plaintiff amended the Complaint to add CDC Madison Lomita LLC (CDC) as Defendant Doe 1.
On June 16, 2023, following stipulation of the parties, Plaintiff filed the First Amended Complaint against Defendants Regents and CDC.
Plaintiff alleges that on December 16, 2019, she sustained serious injuries on the premises owned, possessed, worked upon, managed, supervised, operated, maintained, or controlled by Defendants as a result of the negligent placement of a stanchion outside of the elevator.
On July 31, 2023, Defendants Regents and CDC filed a Cross-Complaint against Roes 1 through 25 for
equitable indemnity, contribution/apportionment of fault, declaratory relief, breach of contract, and express indemnity.
On November 21, 2023, pursuant to Plaintiffs Request for Dismissal, the Court dismissed Defendant Regents without prejudice.
On March 25, 2024, Defendant CDC filed the instant Motion for Terminating Sanctions and Request for Monetary Sanctions (Motion).
No opposition has been filed.
On July 2, 2024, Defendant filed a Notice of Non-Opposition to the Motion.
On June 7, 2024, the matter was assigned to Judge Karen Moskowitz in Department B of the Van Nuys Courthouse East.
II.
Legal Standard
Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions.
(Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)
Code of Civil Procedure § 2030.040 requires that [a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.
Furthermore, the notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.
(Code of Civ. Proc. § 2030.040.)
Monetary sanctions may be imposed
ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct&unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(
Code of Civ. Proc. § 2030.030(a).)
Issue sanctions may be imposed ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.
(Code of Civ. Proc. § 2030.030(b).)
Evidence sanctions may be imposed
by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.
(Code of Civ. Proc. § 2030.030(c).)
In more extreme cases, the Court may also impose terminating sanctions by striking out the pleadings or parts of the pleadings, staying further proceedings, dismissing the action, or any part of the action, or rending a judgment by default against the party misusing the discovery process.
(Code of Civ. Proc. § 2030.030(d).)
The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate.
(
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.)
Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.
(
Lopez v. Watchtower Bible and Tract Society of New York, Inc.
(2016) 246 Cal.App.4th 566, 604-605.)
In
City of Los Angeles v. PricewaterhouseCoopers, LLC
, the Court ruled that Code of Civil Procedure §§ 2023.010 and 2023.030 list the available discovery sanctions but do not independently authorize a court to impose specific sanctions.
(
PriceewaterhouseCoopers
(2022) 84 Cal.App.5th 466, 503-504.)
Thus, a courts authority to impose the sanctions specified in §§ 2023.010 and 2023.030 must arise from a statute governing a particular method of discovery.
(
Ibid.
)
III.
Discussion
Defendant CDC moves for terminating sanctions against Plaintiff Mayes and for dismissal of the Complaint with prejudice.
(Mot. pp. 1-2.)
Defendant also moves for an order imposing monetary sanctions in the amount of $5,428.23 against Plaintiff.
(
Ibid.
)
Defendant states that Plaintiff has failed to appear at seven (7) properly noticed depositions.
(Braun Decl.
¶¶ 2, 8-13, 15-16, Exs. A-I.)
On November 17, 2023, after Plaintiff failed to appear at a deposition for the sixth time, Defendant Filed a Motion to Compel Plaintiffs Deposition.
The Court granted Defendants Motion on December 15, 2023, and ordered Plaintiff to appear at a mutually agreed upon date and to pay monetary sanctions in the amount of $1,132.36.
Sanctions were paid and the following deposition was set for February 6, 2024.
(Braun Decl. ¶ 5, Ex. H.)
On the day of the deposition, Plaintiffs counsel informed Defendant that she would not be attending the deposition.
(
Ibid.
at ¶ 6.)
Defendant recorded a Certificate of Non-Appearance.
(
Ibid.
, Ex. I.) The Court notes that on March 28, 2024, the Court granted Plaintiffs counsels Motion to Be Relieved as Counsel and to date, the Court has been informed that Plaintiff has not retained a new representative.
Defendant also requests monetary sanctions in the amount of $5,428.23 as follows: 10 hours of attorney time, billed at a rate of $500 per hour (6.5 hours for preparing the instant Motion, 0.5 hour spent at the February 6, 2024, deposition, additional 2 hours anticipated for reviewing Plaintiffs opposition and preparing a reply, and 1.5 hours to attend the hearing), $341.23 in Court reporter fees for the final deposition, $15 for CourtCall, $60 in motion filing fees, $12 for e-filing fees.
(Braun Decl. ¶¶ 17-20.)
Defendant argues that Plaintiff has a pattern and practice of constant delays by failing to participate in the discovery process even to the point of defying a Court Order to appear for her deposition.
(Mot. p. 4.)
Although Plaintiff has been sanctioned by the Court, she has continued to fail to comply with the discovery process and the Courts order.
(
Ibid.
)
These delays have substantially interfered with Defendants ability to litigate and defend against Plaintiffs claims.
(
Ibid.
p. 5.)
Defendant also argues that terminating sanctions are appropriate because Plaintiffs violation has been willful, demonstrated a history of abuse, and less severe sanctions have not been effective.
(
Ibid.
at p. 6.)
First, the Court notes that the Notices of Taking Deposition for the following dates were issued solely by Defendant Regents, which has since been dismissed from the case: September 27 and December 19, 2022, and April 17 and June 27, 2023.
(Braun Decl. ¶¶ 8-11, Exs. A-D.)
On December 15, 2023, the Court noted that there was no evidence that Plaintiff has served any valid objections to the deposition notices and granted Defendants Motion to Compel Plaintiffs Deposition.
(12-15-23 Minute Order.)
Code of Civil Procedure § 2025.450 governs the imposition of sanctions when a party fails to obey a Court order compelling attendance, testimony, and production at a noticed deposition.
According to § 2025.450(h),
The court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponents testimony would be taken pursuant to that order.
Pursuant to this section, the Court has authority to impose any of the sanctions specified in § 2030.030.
In determining whether terminating sanctions are appropriate in the instant case, the Court considers the totality of the circumstances, including whether there has been a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.
Here, the Court finds that Defendant has presented sufficient evidence to support its request for terminating sanctions.
Plaintiff has failed to attend several noticed depositions and failed to comply with the Courts December 15, 2024 Order.
Furthermore, monetary sanctions have not been effective in promoting compliance with the Courts order and there is a pattern of discovery abuse.
The Motion is unopposed, and Plaintiff has not demonstrated any justification for her failure to comply with discovery.
The Court also finds that $2,678.23 in monetary sanctions are appropriate, as follows: 4.5 hours of attorney time for preparing the Motion, attending the final deposition, and appearing at the hearing on the instant Motion, at $500 per hour, as well as
$341.23 in Court reporter fees, $15 for CourtCall, $60 in motion filing fees, and $12 for e-filing fees.
Accordingly, Defendants Motion for Terminating Sanctions is GRANTED.
Defendants request for monetary sanctions is also GRANTED in the amount of $2,678.23.
IV.
Conclusion & Order
For the foregoing reasons,
Defendant CDC Madison Lomita LLCs Motion for Terminating Sanctions
is GRANTED.
Plaintiff Eva Mayess First Amended Complaint is dismissed with prejudice.
Defendants request for monetary sanctions is also GRANTED in the amount of $2,678.23, to be paid by Plaintiff Eva Mayes within thirty (30) days of the Courts Order.
Moving parties are ordered to give notice.
Ruling
JERSON BARRIOS VS TELACU NW FIVE, INC., ET AL.
Jul 11, 2024 |
20STCV46934
Case Number:
20STCV46934
Hearing Date:
July 11, 2024
Dept:
73
7/11/2024
Dept. 73
Hon. Rolf Treu, Judge presiding
BARRIOS v. TELACU NW FIVE, INC., et al.
(
20STCV46934
)
Counsel for Plaintiff/opposing party:
Daniel Balaban (Balaban & Speilberger, LLP)
Counsel for Defendant/moving party:
Benjamin Sampson (Bordin Semmer LLP)
MOTION FOR AN ORDER TO COMPEL DEPOSITION OF RUDY ELIAS
(
filed by Defendant Waste Management of California, Inc. on 04/04/24)
TENTATIVE RULING
Defendant Waste Management of Californias Motion to Compel Deposition of Rudy Elias is GRANTED.
Rudy Elias is ordered to appear for deposition within 30 days.
Moving party to give notice.
BACKGROUND
On December 8, 2020, Plaintiff Jerson Barrios (Plaintiff) filed this action against Defendants Telacu NW Five, Inc.; Telacu 1270, Inc.; Telacu Development Corporation, Inc.; The East Los Angeles Community Union; Waste Management of California, Inc. (Waste Management); and Waste Management Collection and Recycling, Inc. (collectively, Defendants).
The Complaint alleges that while in the course of Plaintiffs employment with Garibay Landscaping, Inc.,
Plaintiff sustained significant injuries during an incident on
May 2, 2020. Plaintiff alleges he was standing on the outer ledges on the top of a dumpster, as he and others usually did, to empty the contents of the reusable trash bags full of leaves, shrubbery, branches, which was being handed to him by another member of the Garibay Landscaping crew. Plaintiff alleges he suddenly lost his balance and fell down to the ground hitting the back of his head, neck, back and the rest of his body onto the asphalt/concrete floor, suffering a skull fracture, respiratory failure, spinal injuries and shoulder abrasion, among other injuries.
On April 4, 2024, Defendant Waste Management filed the instant
Motion to Compel Witness Rudy Elias
to Comply with the Deposition Subpoena for Personal Appearance and Production of Documents.
No opposition was filed.
ANALYSIS
Defendant Waste Management moves to compel the deposition of third-party witness Rudy Elias.
A party may move to compel a non-partys compliance with a subpoena that requires the attendance of a witness. (Code Civ. Proc., § 1987.1.(a) Unlike a motion to compel a partys deposition under Code of Civil Procedure section 2025.450, the movant is not required to show good cause or include an accompanying meet and confer declaration.
On February 12, 2024,
Rudy Elias was served with a subpoena for his personal appearance at deposition which was set for March 21, 2024.
Defendant Waste Management asserts that Mr. Elias testimony is highly relevant to this case. Plaintiff identified Mr. Elias as a post-incident employer, thus Defendant Waste Management argues Mr. Elias testimony is important for liability and damage-related issues. Defendant Waste Management contends that Mr. Elias never indicated he would not be able to appear.
The Court notes that the motion is unopposed.
Due to the lack of opposition, an inference is created that the motion is meritorious. (
Sexton v. Superior Court
(1997) 58 Cal.App.4th 1403, 1410.)
The Court GRANTS Defendant Waste Managements motion. Rudy Elias is ordered to appear for deposition within 30 days.
CONCLUSION
Defendant Waste Management of Californias Motion to Compel Deposition of Rudy Elias is GRANTED.
Rudy Elias is ordered to appear for deposition within 30 days.
Moving party to give notice.
