DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al.

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 08/21/2025 Hearing on Motion to Compel Attendance at Deposition in Department 54

Tentative Ruling

Plaintiff Morgan DiBartolo’s (“Plaintiff”) motion to compel Defendant in pro per Peter Kim (“Dr. Kim”) to appear and testify at his deposition is UNOPPOSED and GRANTED, in part, and DENIED, in part, as follows.

This is Plaintiff’s second motion to compel Dr. Kim’s deposition. On May 14, 2025, the Court granted Plaintiff’s first motion, which was also unopposed. The Court ordered Dr. Kim to appear for his deposition on June 11, 2025, unless the parties agreed in writing to a later date. The Court also granted Plaintiff’s request for monetary sanctions in the amount of $1,500 to be paid by May 26, 2025.

On May 30, 2025, Plaintiff served Dr. Kim with confirmation of his June 11, 2025 deposition. This confirmation included the Zoom information for Dr. Kim’s June 11, 2025, deposition. (Declaration of Nathan Searcy, ¶ 13, Exs. 14-15.)

On June 11, 2025, Plaintiff’s counsel opened Dr. Kim’s deposition at the scheduled time. Dr. Kim did not appear or send any communication indicating that he would appear. Plaintiff took Dr. Kim’s non-appearance. (Id., ¶ 15.) Dr. Kim has not paid the monetary sanctions. (Id., ¶ 14.)

Plaintiff now moves to compel Dr. Kim to appear and testify at his deposition. Plaintiff also seeks monetary sanctions in the amount of $4,407.50, issue sanctions, evidentiary sanctions, and terminating sanctions.

Trial is scheduled for June 2, 2026.

For misuse of the discovery process, such as disobeying a court order to provide discovery, the Court may impose a terminating sanction by one of the following: an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process or an order dismissing the action, or any part of the action, of that party. (See, e.g. Code Civ. Proc. §§ 2023.010(d) and (g), 2023.030(d)(1) and (3).) The Court may also impose issue, evidentiary, or monetary sanctions. (Code Civ. Proc. § 2023.030(a), (b), and (c).)

A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is tailored to the harm caused by the withheld discovery. Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party who has been denied discovery. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.) “The sanctions the court may impose are such as are

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 08/21/2025 Hearing on Motion to Compel Attendance at Deposition in Department 54

suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. [Citations.]” (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782.)

The discovery statutes thus “evince and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Although in extreme cases a court has the authority to order a termination sanction as a first measure (see Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928-929; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10), a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (See Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516; Doppes, 174 Cal.App.4th at 992; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399.)

The Court finds that terminating, issue, and/or evidentiary sanctions are not appropriate at this time. Accordingly, the motion for terminating, issue and evidentiary sanctions is DENIED.

The motion to compel Dr. Kim to appear at deposition is GRANTED. The Court again orders Dr. Kim to appear for his deposition. Dr. Kim’s deposition shall take place no later than September 22, 2025, unless the parties agree in writing to a later date. Plaintiff shall serve an amended deposition notice on Dr. Kim. Dr. Kim is cautioned that continued failure to comply with court orders may result in further sanctions, up to and including terminating sanctions.

Where a motion to compel a party’s deposition attendance is granted, monetary sanctions are mandatory “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.” (Code Civ. Proc. § 2025.450(g)(1).) Since Dr. Kim has not opposed the motion, there is not showing of substantial justification or unjust circumstances.

Thus, Plaintiff’s request for monetary sanction is GRANTED. The Court will award a reduced amount of $1,200 (3 hours x $400/hr.) The monetary sanction is to be paid on or before September 22, 2025. If the sanction is not paid by that date, Plaintiff may prepare for the Court’s signature a formal order granting the sanctions, which may be enforced by a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 08/21/2025 Hearing on Motion to Compel Attendance at Deposition in Department 54

Moving party has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th Street, Sacramento California 95814. Moving party shall notify responding party(ies) immediately.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 08/21/2025 Hearing on Motion to Compel Attendance at Deposition in Department 54

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.