ROSA MARIA MUNOZ-CASTRO, ET AL. VS COLE BENJAMIN MYERS, ET AL.

Tentative Rulings

Case Number: 19STLC03129 Hearing Date: August 17, 2021 Dept: 26

Munoz-Castro, et al. v. Reyes, et al. 19STLC03129

MOTION FOR TERMINATING SANCTIONS AND\r\nMONETARY SANCTIONS

(CCP\r\n§ 2023.010)

TENTATIVE RULING:

Defendants\r\nCorporation of the President of The Church of Jesus Christ of Latter-day Saints\r\nand Cole Benjamin Myers’ Motions for Terminating and Monetary Sanctions Against\r\nPlaintiff Hector Manuel Munoz is GRANTED AS TO TERMINATING SANCTIONS ONLY. THE\r\nCOURT HEREBY DISMISSES PLAINTIFF’S COMPLAINT WITH PREJUDICE. THE REQUEST FOR\r\nMONETARY SANCTIONS IS DENIED.

DEFENDANTS ARE\r\nTO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS OF THIS ORDER.

ANALYSIS:

Plaintiffs Rosa Maria Munoz-Castro, Hector Manuel Munoz and\r\nPaola Abigail Cardona (collectively, “Plaintiffs”) filed the instant action for\r\nmotor vehicle negligence against Defendants Cole Benjamin Myers and Corporation\r\nof the President of the Church of Jesus Christ of Latter-Day Saints\r\n(collectively, “Defendants”) on April 2, 2019.

On February 18,\r\n2021, the Court granted Defendants’\r\nmotion to compel Plaintiffs’ depositions and awarded Defendants monetary\r\nsanctions. (Minute Order, 02/18/21.) On June 9, 2021, the Court granted\r\nDefendants’ Motions for Terminating Sanctions and Monetary Sanctions\r\nagainst Plaintiffs Rosa Maria Munoz-Castro and Paola Abigail Cardona. (Minute\r\nOrder, 06/09/21.) The Court granted Plaintiffs’ counsel’s Motion to be Relieved\r\nas Counsel on July 19, 2021.

Defendants’ Motion for Terminating Sanctions and Monetary\r\nSanctions against Plaintiff Hector Manuel Munoz was filed on April 21, 2021. No opposition\r\nhas been filed to date.

Discussion

Where a party willfully disobeys a discovery order, courts\r\nhave discretion to impose terminating, issue, evidence or monetary sanctions.\r\n(Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v.\r\nCreative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should\r\nlook to the totality of the circumstances in determining whether terminating\r\nsanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225,\r\n1246.) Ultimate discovery sanctions are justified where there is a willful\r\ndiscovery order violation, a history of abuse, and evidence showing that less\r\nsevere sanctions would not produce compliance with discovery rules. (Van\r\nSickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as\r\nsevere as dismissal or default is not authorized where noncompliance with\r\ndiscovery is caused by an inability to comply rather than willfulness or bad\r\nfaith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “The court\r\nmay impose a terminating sanction by one of the following orders:

(1) An\r\norder striking out the pleadings or parts of the pleadings of any party engaging\r\nin the misuse of the discovery process.

(2) An\r\norder staying further proceedings by that party until an order for discovery is\r\nobeyed.

(3) An\r\norder dismissing the action, or any part of the action, of that party.

(4) An\r\norder rendering a judgment by default against that party.”

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

The Court granted Defendants’ discovery motions and awarded\r\nmonetary sanctions on February 18, 2021 and notice of the order was served on\r\nPlaintiff Munoz on February 25, 2021. (Notice of Ruling, filed 02/25/21.)\r\nPursuant to the ruling, Plaintiff Munoz was to appear at deposition on a date\r\nand time set by defense counsel, within 20 days. (Minute Order, 02/18/21.)\r\nDefendants served notices of deposition setting Plaintiff Munoz’s deposition\r\nfor March 15, 2021, but he failed to appear. (Motion, Kaufman Decl., ¶¶14-15\r\nand Exhs. C-D.) To date, despite Defendants’ meet and confer efforts, Plaintiff\r\nMunoz has not complied with the Court’s orders nor paid the monetary sanctions\r\nas required. (Id. at ¶16.)

The Court finds that terminating sanctions are warranted for\r\nPlaintiff Munoz’s non-compliance. Despite notice of the Court’s orders,\r\nPlaintiff Munoz did not appear for deposition nor pay sanctions as ordered.\r\nAlso, given the notice provided, the Court finds the failure to comply with the\r\ndiscovery orders to be willful. Furthermore, although Plaintiff Munoz was properly\r\nserved with the instant Motion for Sanctions, no opposition has been filed.

Although terminating sanctions are a harsh penalty, the\r\nabove evidence demonstrates that Plaintiff Munoz’s compliance with the Court’s\r\norders cannot be achieved through lesser sanctions. Indeed, it appears that\r\nPlaintiff Munoz has no intention of complying with the Court’s orders or\r\nprosecuting the claims against Defendants. “The court [is] not required to\r\nallow a pattern of abuse to continue ad infinitum.” (Mileikowsky v. Tenet\r\nHealthsystem (2005) 128 Cal.App.4th 262, 280.)

In light of the award of terminating sanctions, Defendants’\r\nrequest for monetary sanctions is denied as futile. Monetary sanctions were\r\npreviously awarded and remain unpaid.

Conclusion

Defendants\r\nCorporation of the President of The Church of Jesus Christ of Latter-day Saints\r\nand Cole Benjamin Myers’ Motions for Terminating and Monetary Sanctions Against\r\nPlaintiff Hector Manuel Munoz is GRANTED AS TO TERMINATING SANCTIONS ONLY. THE\r\nCOURT HEREBY DISMISSES PLAINTIFF’S COMPLAINT WITH PREJUDICE. THE REQUEST FOR\r\nMONETARY SANCTIONS IS DENIED. DEFENDANTS ARE TO FILE A PROPOSED JUDGMENT WITHIN\r\nTEN (10) DAYS OF THIS ORDER.

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Moving party to give notice.

Case Number: 19STLC03129    Hearing Date: February 18, 2021    Dept: 26

Munoz-Castro, et al. v. Reyes, et al.

MOTION TO COMPEL DEPOSITION AND REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Defendants Corporation of the President of The Church of Jesus Christ of Latter-day Saints and Cole Benjamin Myers’ (1) Motion to Compel Plaintiff Rosa Maria Munoz-Castro’s Attendance at Deposition and Request for Sanctions; (2) Motion to Compel Plaintiff Hector Manuel Munoz’s Attendance at Deposition and Request for Sanctions; and (3) Motion to Compel Plaintiff Paola Abigail Cardona’s Attendance at Deposition and Request for Sanctions are GRANTED.

PLAINTIFFS ARE ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME DETERMINED BY DEFENSE COUNSEL, WITHIN 20 DAYS’ SERVICE OF THIS ORDER. EACH PLAINTIFF IS FURTHER ORDERED TO PAY SANCTIONS OF $627.45 TO DEFENSE COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiffs Rosa Maria Munoz-Castro and Paola Abigail Cardona (“Plaintiffs”) filed the instant action for motor vehicle negligence against Defendants Cole Benjamin Myers (“Defendant Myers”) and Corporation of the President of the Church of Jesus Christ of Latter-Day Saints (“Defendant Church”) on April 2, 2019.

Defendants filed the instant Motions to Compel Plaintiffs’ Attendance at Deposition and Request for Sanctions (“the Motions”) on July 30, 2020. On February 10, 2021, Plaintiffs’ counsel filed a declaration in opposition to the Motions.

Legal Standard

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).) A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

Discussion

The motion is accompanied by a declaration demonstrating that defense counsel continually meet and conferred with Plaintiff’s counsel regarding dates on which Plaintiff would be available for deposition. (Motions, Kaufman Decl., ¶¶2-7 and Exhs. A-E.) Despite these efforts, Plaintiffs failed to appear for two properly noticed deposition dates. (Ibid.) Although the declaration does not specifically state “that the petitioner has contacted the deponent to inquire about the nonappearance” following Plaintiffs’ failure to appear for the July 2, 2020 depositions, the attorneys for the parties did communicate frequently about the deposition dates. At the last meet and confer, defense counsel explained that Defendants would move to compel the depositions if Plaintiffs did not appear. (Id. at Exh. E.) Now, on the eve of this hearing, Plaintiffs’ counsel filed a declaration affirming she has lost contact with Plaintiffs and can make no substantive opposition to the Motions. (Sklar Decl., filed 2/10/21.)

Based on Plaintiffs’ failure to cooperate in the taking of their depositions, Defendants are entitled to an order compelling their appearance and an award of sanctions. However, the sanctions sought are excessive under a lodestar calculation. Each request for sanctions is granted in the amount of $627.45 based on one hour of attorney time billed at $250.00, plus $317.25 in court reporter fees and $60.00 in costs. (Motions, Kaufman Decl., ¶10.)

Conclusion

Defendants Corporation of the President of The Church of Jesus Christ of Latter-day Saints and Cole Benjamin Myers’ (1) Motion to Compel Plaintiff Rosa Maria Munoz-Castro’s Attendance at Deposition and Request for Sanctions; (2) Motion to Compel Plaintiff Hector Manuel Munoz’s Attendance at Deposition and Request for Sanctions; and (3) Motion to Compel Plaintiff Paola Abigail Cardona’s Attendance at Deposition and Request for Sanctions are GRANTED.

PLAINTIFFS ARE ORDERED TO APPEAR FOR DEPOSITION AT A DATE AND TIME DETERMINED BY DEFENSE COUNSEL, WITHIN 20 DAYS’ SERVICE OF THIS ORDER. EACH PLAINTIFF IS FURTHER ORDERED TO PAY SANCTIONS OF $627.45 TO DEFENSE COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.

Case Number: 19STLC03129    Hearing Date: July 14, 2020    Dept: 26

Munoz-Castro v. Myers, et al.

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES

(CCP § 2030.300)

TENTATIVE RULING:

Defendants Corporation of the President of The Church of Jesus Christ of Latter-day Saints and Cole Benjamin Myers’ (1) Motion to Compel Plaintiff Paola Abigail Cardona’s Further Responses to Form Interrogatories, Set One; and (2) Motion to Compel Plaintiff Rosa Maria Munoz-Castro’s Further Responses to Form Interrogatories, Set One, are GRANTED. FURTHER RESPONSES ARE TO BE SERVED WITHIN 20 DAYS’ NOTICE OF THIS ORDER.

ANALYSIS:

Plaintiffs Rosa Maria Munoz-Castro and Paola Abigail Cardona (“Plaintiffs”) filed the instant action for motor vehicle negligence against Defendants Cole Benjamin Myers and Corporation of the President of the Church of Jesus Christ of Latter-Day Saints (“Defendants”) on April 2, 2019. Defendants filed the instant Motions to Compel Further Responses on March 12, 2020. On April 15, 2020, Plaintiffs’ counsel filed an opposing declaration.

Procedural Requirements

Notice of the motion to compel further must be given “within 45 days of service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing,” otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c).) Here, Plaintiffs’ verified responses were served by mail on January 23, 2020. (Motions, Kaufman Decl., ¶5 and Exh. C.) The notice of motion and motions to compel further were timely served on March 12, 2020. (Motions, POS.)

The motion must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b).) Defense counsel sent meet and confer letters on January 30, 2020. (Motions, Kaufman Decl., ¶6 and Exh. D.) The meet and confer requirement, therefore, is satisfied.

Finally, Cal. Rules of Court Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a).) The motions are accompanied by concurrently filed separate statements.

Substantive Basis

“On receipt of a response to interrogatories, the [propounding party] may move for an order compelling a further response if that party deems that: ¶ An answer to a particular interrogatory is evasive or incomplete” or “[a]n objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a)(1), (3).)

Defendants move for further responses from both Plaintiffs to Special Interrogatory No. 1, which asks them to “[s]tate the telephone number(s) and name of the cellular phone carrier(s) for any and all

cellular telephone(s) YOU (“YOU,” “YOUR,” or “YOURSELF” means Plaintiff [Paola Abigail

Cardona or Rosa Maria Munoz-Castro]) had or used on the date of the INCIDENT (“INCIDENT” includes the circumstances and events surrounding the April 19, 2017 automobile accident and injuries therefrom giving rise to this action or proceeding). (Separate Statements, p. 2:9-13.) In response, Plaintiffs provided their phone numbers, but then state “[t]he carrier is unknown to Plaintiff.” (Id. at p. 2:15.)

The Court agrees with Defendants that this response is incomplete. A response to an interrogatory must either be (1) an answer containing the information sought to be discovered; (2) an exercise of the party’s option to produce writings; and (3) an objection to the particular interrogatory. (Code Civ. Proc., § 2030.210, subd. (a).) Stating that the information is unknown is neither acceptable under the statute, nor credible. When a party does not know the information requested, he or she must make a reasonable and good faith effort to obtain the information. (Code Civ. Proc., § 2030.220, subd. (c).) It is certainly possible to obtain the name of one’s own cell phone carrier after a reasonable and good faith effort.

Based on the foregoing, the Motions to Compel Further Responses to Form Interrogatories, Set One, No. 1 are GRANTED. FURTHER RESPONSES ARE TO BE SERVED WITHIN 20 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.