Herbas vs. Ean Holdings, LLC

process includes disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g).)

“Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful . . .” (Vallbona v. Springer (1996) 43 CalApp.4th 1525, 1545 [citation omitted].)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. . . . If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. ‘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.’” (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259 [cleaned up].) As such, terminating sanctions are “a drastic penalty that should be used sparingly.” (Id. at p. 1261 [citation omitted].)

After Plaintiff failed to appear at his originally noticed deposition, the Court granted Defendant’s motion to compel on 12/30/25 and ordered Plaintiff to appear for his deposition by 1/30/26. (Canale Decl., ¶¶ 2, 3, Ex. A.) On 12/30/25, Plaintiffs sent Defendant’s counsel an email stating they were able to sit for depositions any day in January 2026 except for January 13. (Canale Decl., ¶ 4, Ex. B.) That same day, Defendant served notice of Plaintiff’s Court ordered deposition for 1/16/26 on both Plaintiff and Plaintiff’s then counsel. (Canale Decl., ¶ 5, Ex. C.) Plaintiff failed to appear for his deposition on 1/16/26. (Canale Decl., ¶ 6, Ex. D.)

Defendant has not, however, demonstrated a history of discovery abuses by Plaintiff aside from his failure to appear at deposition or that lesser sanctions have failed to curb misuse. Courts are to take an “incremental approach” to discovery sanctions.

Tentative Ruling: The Court DENIES Defendant’s request for a terminating sanction by an order dismissing the complaint.