Tentative Rulings

Case Number: BC632043    Hearing Date: August 21, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

NOTICE

The Court posts this tentative order on August 18, 2020, three days before the hearing. Any party who does not appear at the hearing shall waive the right to be heard and shall submit to this tentative order. The Court approves remote appearances via LACourtConnect.

BACKGROUND

Plaintiffs Shelita Walker and Darnell Easley (“Plaintiffs”) filed this action on August 29, 2016. On January 24, 2020, the Court granted a motion for terminating sanctions by defendant Wendy Shuster (“Defendant”) and dismissed this case due to Plaintiffs’ failure to comply with this Court’s orders. Now, Plaintiffs seek reconsideration of that order. The motion is denied.

PROCEDURAL HISTORY

Plaintiffs allegedly were involved in a motor vehicle collision on September 2, 2014. Plaintiffs filed their complaint on August 29, 2016. Almost two years later, on May 15, 2019, the Court held an Order to Show Cause (“OSC”) Re: Dismissal for Failure to Serve. Although Plaintiffs’ counsel did not appear, he had filed an application for service by publication, which the Clerk’s Office rejected. Therefore, the Court discharged the OSC and set an OSC re: Dismissal for Failure to Enter Default for September 11, 2018. The Court ordered Plaintiff’s counsel to appear personally at that hearing.

On August 1, 2018, Plaintiffs’ counsel filed a corrected application for service by publication accompanied by a declaration detailing his difficulties in serving Defendant. On August 15, 2018, the Clerk’s Office rejected the application. Therefore, the Court continued the OSC hearing to October 30, 2018. On that date, the Court again continued the OSC to January 11, 2019, and then to March 28, 2018, as Plaintiff’s counsel had been unsuccessful—repeatedly—in filing a proper application for service by publication.

On March 25, 2019, the Court granted Plaintiffs’ application to serve by publication. Defendant answered and propounded discovery on April 26, 2019. On September 12, 2019, Defendant filed a motion to compel answers to Form Interrogatories, Special Interrogatories, and Request for Production. Plaintiffs’ counsel did not oppose the motion. Nor did he appear at the hearing on the motion, which was held on October 23, 2019. The Court granted the motion and ordered Plaintiffs to comply with their discovery obligations within thirty (30) days of notice of the order. Defendant provided notice by mail on October 24, 2019, meaning that Plaintiffs were required to provide discovery responses on or before November 28, 2020.

Two weeks after that deadline, Defendant filed a motion for terminating sanctions. Plaintiffs’ counsel did not oppose the motion. Nor did Plaintiffs’ counsel appear at the hearing on January 24, 2020. The Court granted the motion, finding that no lesser sanction would compel Plaintiffs to comply with their discovery obligations. Now, Plaintiffs move for reconsideration of that order.

LEGAL STANDARD

Code of Civil Procedure section 1008 requires a party seeking reconsideration to “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown” in the current motion.  (Code Civ. Proc., 1008, subd. (b).) The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time . . . .” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations and citations omitted.)

DISCUSSION

Plaintiffs rely on the declaration of their counsel, Benjamin P. Wasserman (“Wasserman”), who states that he attempted to appear at the January 24, 2020 hearing, but was unable to do so because of a court call error. (Declaration of Benjamin P. Wasserman, ¶ 3.) This does not excuse Plaintiffs’ repeated disregard for their obligations prior to the hearing, specifically:

1. Plaintiffs did not comply with their discovery obligations between the time discovery was propounded on April 26, 2019, and the date of the hearing on the motion to compel, which was October 23, 2019.

2. Plaintiffs’ counsel did not oppose the motion to compel or appear at the hearing on October 23, 2019.

3. Plaintiffs did not comply with their discovery obligations between the time the Court granted the motion to compel on October 23, 2019, and the date of the hearing on the motion for terminating sanctions, which was January 24, 2020.

4. Plaintiffs did not file oppositions to the motions for terminating sanctions. The failure to file an opposition waived Plaintiffs’ right to oppose the motion. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

As of the date of the motion for reconsideration, Plaintiffs apparently still have not complied with their discovery obligations. In other words, Plaintiffs seek to reinstate their action even though they have not responded to outstanding discovery requests for approximately16 months. Indeed, Plaintiffs’ motion provides no basis to conclude that they will comply with their discovery obligations if afforded another opportunity to do so.

In his declaration, Plaintiffs’ counsel states: “[D]uring the time interval between October 23, 2019 and the January 24, 2020, hearing date, Plaintiffs were unable to provide verified answers due to complete incapacitation, inability to speak and Plaintiffs’ mental deficits due to serious and permanent bodily injuries sustained from numerous gunshot wounds to Plaintiffs, DARNELL EASLEY’s upper back, spinal areas, into his abdominal region received several months ago.” (Declaration of Benjamin P. Wasserman, ¶ 4.) This does not constitute good cause to grant Plaintiffs’ motion for several reasons. First, it does not explain why Plaintiffs did not comply with their discovery obligations between April 26 and October 23, 2019. Second, it does not provide good cause to conclude that Plaintiffs will comply with their discovery obligations if afforded another opportunity to do so. Third, and perhaps most important, if Plaintiff Darnell Easley is permanently incapacitated with “mental deficits” and cannot speak, a guardian ad litem must be appointed to respond to outstanding discovery and pursue the litigation. No guardian ad litem was appointed between October 23, 2019 and the January 24, 2020. Regardless, Plaintiff Darnell Easley’s alleged incapacitation does not explain why Plaintiff Shelita Walker has not complied with her discovery obligations.

CONCLUSION AND ORDER

This case was filed on August 29, 2016, and the Court granted a motion for terminating sanctions on January 24, 2020. During this period of approximately three-and-one-half years, Plaintiffs did virtually nothing to prosecute this case and did not comply with their discovery obligations. Now, Plaintiffs seek to have the case reinstated, still not having complied with their discovery obligations. Based upon the foregoing, Plaintiffs’ motion for reconsideration is denied. The Court’s clerk shall provide notice.

DATED: August 21, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC632043    Hearing Date: January 24, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Defendant Wendy Shuster (“Defendant”) moves to dismiss the complaint of Plaintiffs Shelita Walker and Darnell Easley (“Plaintiffs”) as a terminating sanction. 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 23, 2019, the Court ordered Plaintiffs to serve verified responses to form interrogatories, special interrogatories, and requests for production of documents within 30 days of notice of the order. Defendant served Plaintiffs with notice of the ruling by mail on October 24, 2019. Plaintiffs thus had until December 2, 2019 to serve responses in compliance with this Court’s order. As of the filing date of these motions, Plaintiffs have not served responses to the discovery. Plaintiffs have not opposed the motions, and there is nothing in the record to suggest that they have complied with their discovery obligations. The Court finds the violation to be willful. The Court has considered imposing lesser sanctions but none would compel compliance with the Court’s prior orders. Therefore, the Court grants the motions for terminating sanctions. The Court declines to impose additional monetary sanctions, as they would be fruitless.

CONCLUSION AND ORDER

Defendant’s motions for terminating sanctions are granted. Plaintiffs’ complaint against Defendant is dismissed with prejudice. Defendant shall provide notice and file proof of such with the Court.

DATED: January 24, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court