TENTATIVE RULING AND
ORDER FOR PLAINTIFF TO APPEAR IN COURT ON SEPTEMBER 9, 2016, 8:30 A .M.
JUDGE DALILA C. LYONS
DEPARTMENT 20
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Hearing Date: Tuesday, August 23, 2016 (Posted on CourtNet on August 17, 2016)
Case Name: Pucin v. Los Angeles Times, et al.
Case No.: BC600833
Motion: Terminating Sanctions, or in the alternative Evidentiary, Issue, and Monetary Sanctions
Moving Party: Defendants Los Angeles Times Communications LLC, Tribune Publishing Company, John Cherwa, and Mike James
Responding Party: UNOPPOSED
Notice: OK
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Ruling: Defendants Los Angeles Times Communications LLC, Tribune Publishing Company, John Cherwa, and Mike James?s motion for terminating sanctions is GRANTED.
Defendants Los Angeles Times Communications LLC, Tribune Publishing Company, John Cherwa, and Mike James request for monetary sanctions against Plaintiff Diane Pucin is GRANTED in the amount of $1,897.50.
COURT ORDER: Plaintiff is ordered to appear on September 9, 2016, at 8:30 a.m. for a status conference regarding her lack of diligence in prosecution of this case. PLAINTIFF?S FAILURE TO APPEAR AT THE SEPTEMBER 9, 2016 WILL DEEMED CONSENT TO DISMISS THIS CASE AS TO ALL DEFENDANTS.
This document will be posted online 8/17/16. Defendants are ordered to print it and mail it to plaintiff as soon as possible and file proof of service by 9/8/16.
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BACKGROUND
On November 10, 2015 Plaintiff Diane Pucin (?Plaintiff?) filed the Complaint against Defendants Los Angeles Times, Los Angeles Times Communications LLC , Tribune Publishing Company , Tribune Interactive Media Net Inc., Tribune Company, Mike Hiserman, John Cherwa, Mike James, and Does 1 through 100 for (1) discrimination on the basis of age in violation of FEHA, (2) harassment on the basis of age in violation of FEHA, (3) discrimination on the basis of disability in violation of FEHA, (4) harassment on the basis of disability in violation of FEHA, (5) discrimination on the basis of gender in violation of FEHA, (6) harassment on the basis of gender in violation of FEHA, (7) wrongful termination in violation of public policy in violation of FEHA, (8) wrongful termination in violation of public policy in violation of Labor Code ? 1102.5, (9) breach of implied-in-fact contract to not terminate employment without good cause, (10) failure to prevent discrimination, retaliation, and harassment in violation of FEHA, and (11) intentional infliction of emotional distress.
Plaintiff alleges she was hired on September 01, 1998 and worked for the defendants for 16 years. Plaintiff alleges she is a 59 year-old female and that beginning in 2013 when Cherwa became her direct supervisor for the first time the quality of Plaintiff?s work was called into question.
MOVING PARTY POSITION
Defendants Los Angeles Times Communications LLC, Tribune Publishing Company, John Cherwa, and Mike James (collectively ?Defendants?) move for an order awarding terminating sanctions, or in the alternative evidentiary or issue sanctions, and monetary sanctions in the amount of $1,897.50 based on Plaintiff?s continued failure to engage in the discovery process and obey the Court?s orders.
OPPOSITION
No opposition was filed. ?A party who has not timely filed written opposition to a motion?may not be afforded an opportunity to offer oral argument at the hearing.? Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410. ?The failure to file opposition creates an inference that the motion or demurrer is meritorious.? Id. ?In such cases, the court may hear argument limited to a request for a continuance of the hearing in order to afford an opportunity for written opposition.? Id. ?[T]he rule is patently intended to prevent the introduction of legal theories without prior notice to opposing counsel and the court.? Id.
REPLY
Defendants filed a reply and notice of non-opposition stating that Plaintiff still has failed to comply with any of the Court?s prior discovery orders or participate in the litigation in any meaningful manner.
ANALYSIS
I. Terminating Sanctions
?A number of statutes provide authority for the trial court to terminate a case. For example, Code of Civil Procedure section 575.2 permits dismissal of a case for the violation of fast track rules where noncompliance is the fault of the party and not counsel. Code of Civil Procedure former section 2023 permits trial courts to impose terminating sanctions and strike pleadings as a discovery sanction. Additionally, the statutes recognize that the courts have the inherent authority to dismiss an action.? Del Junco v. Hufnagel (2007) 150 Cal. App. 4th 789, 799 (finding dismissal of Defendant appropriate when Defendant ?showed no interest in taking part in the case or in following orders of the court.?).
It is a commonly stated axiom that discovery 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 v. Kilbourne (1978) 84 Cal.App.3d 771, 793. A court may impose terminating sanctions against a party disobeying a discovery order by striking a party?s answer or dismissing a party?s complaint. CCP ? 2023.030. A violation of one discovery order is sufficient for the imposition of terminating sanctions. Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620-1621
Terminating sanctions are authorized where the evidence shows that less severe sanctions will not be successful in compelling discovery responses. Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-80, distinguished on other grounds by New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th 1403, 1426. 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. Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183; McGinty v. Sup. Ct. (1994) 26 Cal.App.4th 204, 214; 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.
Before issuing a sanction, a trial court ?should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ??attempt[ ] to tailor the sanction to the harm caused by the withheld discovery.? ? [Citation.] [It] cannot impose sanctions for misuse of the discovery process as a punishment. [Citations.]? Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304. ??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.? [Citation.]? Doppes, supra, 174 Cal.App.4th at p. 992, fn. omitted. Code of Civil Procedure section 2023.030 allows terminating sanctions, as well as other penalties, for ?misuse of the discovery process.? Cal. Code Civ. Proc. ? 2023.030.
Defendants argue Plaintiff has disobeyed and refused to comply with three court orders and given this pattern of abuse that terminating sanctions are necessary as less severe sanctions will not produce compliance. Defendants argue that while Plaintiff filed the Complaint on November 10, 2015 she has since avoided all efforts to be deposed or provide discovery responses ordered by the Court. Defendants state that on June 22, 2016 the Court granted their motion to compel further responses to the Form Interrogatories General and Employment, with responses due within 30 days of the order but that to date Plaintiff has failed to provide such responses. Kantor Decl. ?? 4-5, Exh. 1. Defendants also that that on June 22, 2016 the Court granted their motion to compel Production of Documents and initial responses to Form Interrogatories General (Set Two) and Special Interrogatories, with responses due within 30 days of the order but again that Plaintiff has to date failed to provide such responses. Kantor Decl. ?? 6-8, Exh. 1. And Defendants state that also on June 22, 2016 the Court granted their motion to compel Plaintiff?s appearance at her deposition within 30 days of the order and Defendants noticed such deposition for July 22, 2016, but Plaintiff violated the order and failed to appear. Kantor Decl. ?? 10-12. Defendants argue that the complete failure to comply with the Court?s orders without any explanation warrants the award of terminating sanctions.
Here, Plaintiff appears to have completely abandoned the case or has deliberately and repeatedly refused to comply with the Court?s orders. The Court notes that in each of the three orders above, Plaintiff filed no opposition to Defendants? motions. Plaintiff again offers no opposition to the instant motion for terminating sanctions. Plaintiff has provided no explanation for her repeated failure to comply with the Court?s orders and such failure appears to be willful disobedience of the Court. The Court is left with no other choice but to grant Defendants? request for terminating sanctions as it does not appear any lesser sanction would produce Plaintiff?s compliance.
Defendants also seek sanctions pursuant to CCP ? 2023.310(u) for the costs and expenses incurred in bringing the instant motion. Defendants seek monetary sanctions in the amount of $1,897.50 for 4.5 hours to prepare the motion, an anticipated 1.0 hour on the reply, and an additional anticipated 2.0 hours to attend the hearing at counsel?s rate of $245.00 per hour plus the $60.00 filing fee. Kantor Decl. ?? 13-14. Defendants? sanctions monetary sanctions request is reasonable.
Accordingly, Defendants? motion for terminating sanctions is GRANTED and Defendants? request for monetary sanctions against Plaintiff is GRANTED in the amount of $1,897.50.
WARNING TO PLAINTIFF:
Plaintiff is warned that given the lack of interest shown in this case, lack of opposition to motions and the deliberate and repeated violation of the court?s orders, further violations of Court orders may subject the plaintiff to more server sanctions, including, dismissal of the case.