SERGIO GONZALEZ, ET AL. VS NATHAN HARRIS, ET AL.

Tentative Rulings

Case Number: *******9913 Hearing Date: October 18, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

John F. Denove and Alicia S. Curran of Cheong & Denove seek to be relieved as counsel of record for Plaintiffs Juan Monreal, Carlos Lopez, and Sergio Gonzalez on grounds that irreconcilable differences have arisen and there is a breakdown in communication.

Ms. Curran declares she confirmed Plaintiffs’ addresses as “current” within the past 30 days although the proposed orders reflect that they are Plaintiffs’ “last known” addresses. Counsel is ordered to submit a supplemental declaration to explain the discrepancy and, if needed, file a revised proposed order.

Case Number: *******9913 Hearing Date: November 2, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

John F. Denove and Alicia S. Curran of Cheong & Denove seek to be relieved as counsel of record for Plaintiffs Juan Monreal, Carlos Lopez, and Sergio Gonzalez on grounds that irreconcilable differences have arisen and there is a breakdown in communication.

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)

Counsel’s Motions comply with California Rules of Court, Rule 3.1362. The Court notes that trial in this matter has not yet been set and no prejudice will result from granting these Motions. However, the proposed orders fail to list the two OSCs re: dismissal scheduled for January 26, 2022. Accordingly, the Motions are GRANTED on the condition that counsel submits within 5 days revised proposed orders identifying the OSCs as upcoming appearances. The motions are effective upon filing a proof of service showing service of the signed revised orders on Plaintiffs and all parties who have appeared.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

Case Number: *******9913 Hearing Date: March 4, 2022 Dept: 28

Motion to Compel Deposition

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 7, 2019, Plaintiff Sergio Gonzalez, Carlos Lopez, and Juan Monreal (collectively “Plaintiffs”) filed a complaint against Defendants Nathan Harris, Phenix Transportation West, Inc, and Does 1-100, (collectively “Defendants”) alleging a cause of action for negligence for an incident that occurred on June 14, 2017.

On February 3, 2022, Defendants Nathan Harris, Phenix Transportation West, Inc., filed separate motions to compel appearance at deposition of Carlos Lopez, Juan Monreal, and Sergio Gonzales.

On February 17, 2022, Defendants Nathan Harris, Phenix Transportation West, Inc., filed separate amended motions to compel appearance at deposition of Carlos Lopez, Juan Monreal, and Sergio Gonzales.

Trial has not been set.

PARTIES’ REQUESTS

Defendants move for an order to compel the attendance and testimony of Carlos Lopez, Juan Monreal, and Sergio Gonzales at deposition pursuant to a duly served noticed. This motion is made on the grounds that Plaintiffs failed to appear and give testimony at deposition.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (a) provides: “If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “A motion under subdivision (a) shall comply with both of the following:

1. The motion shall 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.

1. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

California Code of Civil Procedure section 2025.450, subdivision (c) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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.”

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction 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. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. 2023.010, subd. (d).)

California Rules of Court, rule 3.1348, subdivision (a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

DISCUSSION

On December 16, 2021, Defendants served a notice of taking the deposition of Plaintiff Carlos Lopez by U.S. mail setting the deposition date for January 13, 2022. (Plaintiff Carlos Lopez’s Motion at p. 5; Glass Decl. 2; Exhibit A.) On December 16, 2021, Defendants served a notice of taking the deposition of Plaintiff Juan Monreal by U.S. mail setting the deposition date for January 20, 2022. (Plaintiff Juan Monreal’s Motion at p. 5; Glass Decl. 2; Exhibit A.) On December 8, 2021, Defendants served a notice of taking the deposition of Plaintiff Sergio Gonzalez by U.S. mail setting the deposition date for January 11, 2022. (Plaintiff Sergio Gonzalez’s Motion at p. 5; Glass Decl. 2; Exhibit A.)

Plaintiffs failed to contact defense counsel, nor did Plaintiffs attend the deposition. (Glass Decl. 3.) On January 13, 2022, Defense counsel sent a written correspondence via email to Plaintiff Monreal and Plaintiff Lopez requesting that Plaintiffs contact defense counsel’s office to reschedule the depositions. (Plaintiff Sergio Gonzalez and Plaintiff Carlos Lopez’s Motion and at p. 5; Glass Decl. 4.) On January 20, 2022, Defense counsel sent a written correspondence via email to Plaintiff Monreal requesting that Plaintiff contact defense counsel’s office to reschedule the deposition. (Plaintiff Juan Monreal Motion and at p. 5; Glass Decl. 4.) Plaintiffs failed to respond. (All Declarations of Zakya Glass 4.)

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., 2025.280, subd. (a).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., 2025.450, subd. (a).)

Defendants presents evidence in form a of declaration from defense counsel, stating that Defendants noticed Plaintiffs’ deposition and set the depositions for each Plaintiff on the following dates: January 11, 2022, January 13, 2022, and January 20, 2022. Plaintiffs failed to appear at the noticed depositions and failed to contact Defendants to reschedule the depositions.

Plaintiffs filed no opposition to these Motions, and it is undisputed that Plaintiff failed to appear for the noticed deposition. Accordingly, the Motions to compel Plaintiffs’ deposition is GRANTED and Plaintiff is ordered to appear for deposition within twenty (20) days of the date of this Order, or other day to which the parties agree.

Sanctions

Where the court grants a motion to compel a deposition pursuant to Code of Civ. Proc., 2025.450, subd. (a), sanctions shall be imposed in favor of the party who noticed the deposition and against the deponent, unless the party acted with substantial justification, or the sanction would otherwise be unjust. (Code of Civ. Proc., 2025.450, subd. (g).) Here, Defendants did not request monetary sanctions.

CONCLUSION

The motion is GRANTED.

Plaintiff is ordered to give notice of this ruling.

Case Number: *******9913 Hearing Date: May 31, 2022 Dept: 28

Motion For Order Dismissing Action

Having considered the moving papers, the Court rules as follows. No opposition has been filed.

BACKGROUND

On June 7, 2019, Plaintiffs Sergio Gonzalez, Carlos Lopez, and Juan Monreal (collectively “Plaintiffs”) filed a Complaint against Defendants Nathan Harris, Phenix Transportation West, Inc., and Does 1-100, inclusive (collectively “Defendants”) alleging a cause of action for negligence arising out of a motor vehicle collision that occurred on June 14, 2017.

On April 14, 2022, Defendant Nathan Harris, Phenix Transportation West, Inc., and Phenix Transportation, Inc. filed two separate motions to dismiss Plaintiffs Carlos Lopez and Sergio Gonzalez’s action against Defendants.

Trial has not been set.

PARTY’S REQUEST

Defendants request this Court for an order dismissing Plaintiffs Carlos Lopez and Sergio Gonzalez’s Complaint.[1] This motion is predicated on the Plaintiffs’ failure to prosecute his case by failing to appear for deposition and failure to communicate with defense counsel in violation of the Code of Civil Procedure.

LEGAL STANDARD

Code of Civil Procedure 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

DISCUSSION

Here, Defendants submit evidence showing that Defendants served a deposition notice on Plaintiff Sergio Gonzalez on December 8, 2021, for a scheduled deposition date of January 11, 2022. (Glass Decl. 2.) Defendants submit evidence showing that Defendants served a deposition notice on Plaintiff Carlos Lopez on December 16, 2021, for a scheduled deposition date on January 13, 2022. (Glass Decl. 2.) Defendants provided a zoom link, however, both Plaintiffs Carlos Lopez and Sergio Gonzalez failed to attend their scheduled deposition. (Glass Decl. 4.; Ex. D.)

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.) The Court previously issued orders compelling Plaintiffs to appear for depositions. Plaintiffs have now violated these orders. A brief review of the prior motion reveals that the discovery at issue goes to the crux of Plaintiffs’ claim, and therefore an issue or evidentiary sanction would be tantamount to a terminating sanction. Further, Plaintiffs do not oppose this motion and appear to have abandoned the case.

Based on the foregoing, terminating sanctions are imposed at this time against Plaintiffs, Carlos Lopez and Sergio Gonzalez.

CONCLUSION

Defendants’ motion to dismiss is granted; the complaint is dismissed with prejudice as to Carlos Lopez and Sergio Gonzalez.

Defendants are ordered to give notice of this ruling.

Case Number: *******9913 Hearing Date: June 2, 2022 Dept: 28

Defendants Nathan Harris and Phenix Transporation West, Inc.’s Motion to Dismiss

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 7, 2019, Plaintiffs Sergio Gonzalez (“Gonzalez”), Carlos Lopez (“Lopez”) and Juan Monreal ("Monreal”) filed this action against Defendants Nathan Harris (“Harris”) and Phenix Transportation West, Inc (“Phenix”) for negligence.

On April 14, 2022, Defendants filed a Motion to Dismiss Plaintiff Juan Monreal’s Complaint.

There is no trial date currently set.

PARTY’S REQUEST

Defendants request this Court dismiss Monreal’s complaint. This motion is predicated on the Plaintiffs’ failure to prosecute the case by failing to appear for deposition and failure to communicate with defense counsel violation of the Code of Civil Procedure.

LEGAL STANDARD

Code of Civil Procedure 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

DISCUSSION

Defendants submitted evidence showing that Defendants served a deposition notice on Plaintiff Juan Monreal on December 16, 2021, for a scheduled deposition date of January 20, 2022. (Declaration of Zakiya N. Glass 2.) Defendants provided a zoom link, but Monreal failed to attend his scheduled deposition. (Glass Decl. 4.; Ex. D.) Subsequent to the Court granting an order to compel Monreal’s deposition, Defendants served a deposition notice for March 31, 2022; Defendants once again did not appear. (Glass Decl. 7-8; Ex. F and G.).

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.) Based on Monreal’s lack of appearance and communication, even after the Court ordered Monreal to appear, it is apparent that lesser sanctions would be ineffective. A brief review of the prior motion reveals that the discovery at issue goes to the crux of Plaintiffs’ claim, and therefore an issue or evidentiary sanction would be tantamount to a terminating sanction. Further, Plaintiffs do not oppose this motion and appear to have abandoned the case.

Based on the foregoing, terminating sanctions are imposed at this time against Plaintiffs.

CONCLUSION

Defendants Nathan Harris and Phenix Transporation West, Inc.’s Motion to Dismiss is GRANTED. The complaint is dismissed with prejudice as to Nathan Harris and Phenix Transportation, West Inc.

Defendants are ordered to give notice of this ruling.