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

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.

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 be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Plaintiff Morgan DiBartolo’s (“Plaintiff”) motion for an order compelling Defendant in pro per Peter Kim (“Dr. Kim”) to appear and testify at his deposition and for discovery sanctions is UNOPPOSED and ruled upon as follows.

Plaintiff is admonished for failing to comply with California Rules of Court rule 3.1110(f)(4), which requires electronic exhibits to include electronic bookmarks linking to the first page of each exhibit. Failure to comply with this rule in the future may result in a motion being dropped.

On December 20, 2024, Plaintiff noticed Dr. Kim’s deposition for January 8, 2025. Dr. Kim appeared as scheduled but stated that he had prepared for his deposition in a separate lawsuit and thus refused to proceed. On January 8, 2025, Plaintiff served an amended deposition notice for January 23, 2025. Dr. Kim did not respond to the amended deposition notice and did not appear on the scheduled date. On January 27, 2025, Plaintiff’s counsel twice called Dr. Kim at the phone number listed on the order granting Dr. Kim’s prior counsel’s motion to withdraw, but Dr. Kim did not answer and did not respond to the voicemails left by Plaintiff’s counsel.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 02/25/2026 Hearing on Motion to Compel Attendance at Deposition in Department 28

On May 14, 2025, the Court granted Plaintiff’s motion to compel Dr. Kim’s deposition and ordered Dr. Kim to appear for his deposition on June 11, 2025 as noticed but by no later than June 30, 2025. The Court also imposed monetary sanctions against Dr. Kim in the amount of $1,500 to be paid by May 26, 2025.

On June 2, 2025, the Court ordered Dr. Kim to pay the previously ordered $1,500 in monetary sanctions immediately. To date, the sanctions have not been paid.

On June 11, 2025, Plaintiff’s counsel took Dr. Kim’s nonappearance after Dr. Kim failed to appear for his deposition. Plaintiff’s counsel made multiple attempts to contact Dr. Kim via telephone to inquire about his nonappearance but to no avail.

On August 21, 2025, the Court granted Plaintiff’s second motion to compel Dr. Kim’s deposition and ordered Dr. Kim to appear by no later than September 22, 2025. The Court also imposed additional monetary sanctions in the amount of $1,200 to be paid by September 22, 2025. The Court denied Plaintiff’s request for terminating, issue, and/or evidentiary sanctions.

On September 10, 2025, Plaintiff served Dr. Kim with a new deposition notice for September 22, 2025. Dr. Kim did not serve objections and did not appear, and Plaintiff again took Dr. Kim nonappearance.

On October 10, 2025, the Court ordered Dr. Kim to pay the previously ordered $1,200 in monetary sanctions immediately. To date, the sanctions have not been paid.

On November 17, 2025, Plaintiff’s counsel left Dr. Kim a voice message to inquire about his nonappearance on September 22, 2025. Dr. Kim has not responded to Plaintiff’s counsel’s messages.

Plaintiff now moves for an order compelling Dr. Kim’s deposition attendance. Plaintiff also moves for terminating, issue, evidentiary, and monetary sanctions based on Dr. Kim’s failure to comply with the Court’s previous orders and for misuse of the discovery process. Trial is currently set for June 2, 2026. Plaintiff filed the Complaint on August 29, 2023.

For misuse of the discovery process, the Court may impose sanctions, up to and including terminating sanctions. (Code Civ. Proc. § 2023.030(a)-(d).) Failing to respond to an authorized method of discovery and disobeying a court order to provide discovery both constitute a misuse of the discovery process. (Code Civ. Proc. §§ 2023.010(d), (g), 2023.030(a)-(d); see also § 2025.450(g)-(h).) The Court has broad discretion in the selection of the appropriate sanction to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV007580: DIBARTOLO vs PETER J. KIM, DDS A PROFESSIONAL CORPORATION, et al. 02/25/2026 Hearing on Motion to Compel Attendance at Deposition in Department 28

be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991-992.) The Court may impose sanctions that are 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. (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304.) “The penalty 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.) Sanctions are generally imposed in an incremental approach, with terminating sanctions being a last resort. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) “Although not expressly required by statute, courts have noted that, absent unusual circumstances, nonmonetary sanctions are warranted only if a party willfully fails to comply with a court order.” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618-619.)

Here, the Court finds terminating sanctions are warranted. Plaintiff has been attempting to take Dr. Kim’s deposition for over a year. Dr. Kim initially appeared on January 8, 2025 but claimed he had prepared for the wrong deposition and thus refused to move forward and testify at that time. Notably, the deposition notice for the January 8, 2025 deposition was served at the same address at which all subsequent notices have been served on Dr. Kim. (See Searcy Decl., Exh. 2.) Thus, Dr. Kim’s appearance on January 8, 2025 confirms that the subsequent notices have been properly served and received by Dr.

Kim. Therefore, the Court concludes that Dr. Kim’s failure to comply with its orders is willful. Moreover, Dr. Kim has violated four orders of this Court over the past nine months, and there is no indication that he intends to comply with his discovery obligations or any subsequent orders. Given this, it appears reasonably unlikely that lesser sanctions will be effective in compelling Dr. Kim’s compliance. As a result of Dr. Kim’s refusal to participate in discovery, Plaintiff has been unable to adequately prosecute her case with trial approaching in just over three months.

Accordingly, Plaintiff’s motion for terminating sanctions against Dr. Kim is GRANTED. Plaintiff’s remaining requests for relief are DENIED as moot.

The Amended Answer filed on March 18, 2024 is STRICKEN as to Dr. Kim in his individual capacity only. This order does not apply to any other defendants.

Plaintiff shall provide notice of this ruling to Dr. Kim via mail and file proof of service within five days.