Case Number: BC649048 Hearing Date: May 30, 2018 Dept: 51

Plaintiff sues defendants Friant and Associates, Inc., Business Furniture Services, and Westfall Commercial Furniture in subrogation for damages based on allegations that defendants’ negligence in installing a desk caused the desk to later collapse, injuring an employee of plaintiff’s insured.

On January 24, 2017, plaintiff filed a complaint for subrogation. Defendants each subsequently filed cross-complaints for indemnity. On April 16, 2018, defendant / cross-complainant (hereinafter defendant) filed this opposed motion for terminating sanctions or, in the alternative, evidentiary sanctions. The Court considered the moving, opposition, and reply papers and rules as follows.

Standard

Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.

Code of Civil Procedure section 2023.030, subdivision (d) provides that “[t]he court may impose a terminating sanction by one of the following orders: [¶] (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. [¶] (2) An order staying further proceedings by that party until an order for discovery is obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party. [¶] (4) An order rendering a judgment by default against that party.” A terminating sanction is “the ultimate sanction for discovery abuse.” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.

Short of terminating sanctions, Code of Civil Procedure section 2023.030, subdivision (c) allows the court to “impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. 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. [Citation.] 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.” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (internal quotation marks omitted.)

Analysis

Defendant alleges that during a deposition of Jeffrey Walters (an employee of Spokeo, plaintiff’s insured) plaintiff’s counsel wrote a note on a notepad and showed it to Walters, causing him to materially change his testimony. Initially, Walters testified that he did not have any interaction with anyone from defendant before the accident, which injured Edward Cunje on February 2, 2015. Vanderford Decl., Exh. A (Walters Deposition Transcript (erroneously appended to the motion)), 24:4-9; Fisher-Reyes Decl. ¶¶ 2-3. Defendant had installed the desktops a few days prior on January 27, 2015. Fisher-Reyes Decl. ¶ 4.

While asking a subsequent question, defendant’s counsel and Walters had the following exchange:

Q And I just have to – I’m not casting aspersions, but I do have to note for the record that counsel wrote something on a pad and showed it to you and I saw you nod. So, first of all, I’ll ask what was shown to you.

A I had misunderstood the timing of the questions.

Q In what way? What was the note that was passed to you?

A That I did speak with anybody from the installing company before the incident.

Q That was what was written?

A Something along those lines.

Walters Deposition Transcript, 24:21-25:6. Walters later explained:

Q Okay. I guess, my question is what in the note has jostled your recollection that you’re no longer remembering the time frame correctly?

A I was understanding that I didn’t speak with anybody from the move, not prior to – prior to the injury, but prior to the installation.

Q Okay. So, now, that note has you now recollecting that you did speak with someone prior to the injury?

A Yes.

Q Okay. And what about that note triggered your new recollection?

A Triggered my understanding of the question. I was thinking that it was prior to the injury, not prior to the installation. I did speak to somebody during the installation –

Q Okay.

A – from the installing company.

[¶] . . . [¶]

Q All right. So, this new triggered recollection, what is the new triggered recollection that you have of any interaction with a particular entity before the injury?

A During the installation, we had some of our crew that was setting up computers on top of the desks after they were being installed. And one of those stations, I believe, fell on Meg Keltzer, who we had talked about before.

And she showed me that desk and when she showed me the desk, I talked to somebody who was from the installation company, showing them that that desk had an issue with it.

Q Okay. And that’s the only interaction that you ever had –

A And that was my first intersection from someone from the installing company.

Walters Deposition Transcript, 25:25-26:17, 28:3-19. Defendant states that because the issue of whether a Spokeo employee notified any of defendant’s employees of a purportedly damaged worksurface during the installation “represents the very crux of the case,” plaintiff’s counsel’s “brazen conduct succeeded in preventing [d]efendant and this Court from obtaining Mr. Walters’ truthful testimony on a paramount issue of this litigation.” MOT 5:7, 7:6-8.

Defendant seeks dismissal with prejudice of plaintiff’s case against defendant because an order compelling production of the note would be “futile,” as “there is no means to verify that any handwritten note produced by [p]laintiff was the one shown to Mr. Walters.” MOT 7:25-28. Alternatively, defendant requests an order prohibiting plaintiff from introducing evidence of any conversation between any Spokeo employee and any employee of defendant concerning a broken worksurface. MOT 9:16-18.

Implicit in defendant’s argument are assumptions that Walters intentionally lied after seeing the note and that plaintiff’s counsel would fabricate evidence upon an order to produce the note. Neither of these are reasonable on this record. Walters testified that he understood the initial question as asking whether he spoke with any of defendant’s employees immediately prior to February 5, 2015, when the injury occurred, not whether he had ever spoken to defendant’s employees prior to that date. Walters explained that he did speak to defendant’s employee during the installation, which took place on January 27, 2015. In this context, the note reasonably appears to have merely clarified the question for Walters. In fact, Walters testified as such when asked what the note said:

Q Well, you just saw [the note] 30 seconds ago. So, my question is, what was the note that was written to you, exactly, to the best of your recollection 30 seconds go?

A I believe that it asked if my – if I was understanding the timeline correctly.

Q That’s what the note was, “Are you understanding the timeline correctly”?

A Sure.

Q Well, it’s not “sure.” Is that what the note was?

A I think so.

Q To the best of your recollection?

A Yes.

Walters Deposition Transcript, 25:7-21. There is nothing in the record to suggest that Walters was trying to impede discovery, before or after being shown the handwritten note. The “brazen conduct” defendant alleges plaintiff’s counsel engaged in was merely preventing Walters from falling into an unintentional trap set by his misunderstanding of the initial question.

Moreover, defendant offers no reason for the Court to believe that plaintiff’s counsel would fabricate rather than produce the actual handwritten note if ordered to. (Because defendant makes no request for such an order, the Court does not consider it.) Accordingly, the Court sees no improper conduct and declines to impose defendant’s requested sanctions.

Defendant’s discussion of Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548 does not mandate a different result. In Tucker, the Court of Appeal upheld an award of monetary sanctions imposed after the trial court found that an attorney coached a deponent. The trial court there determined that the attorney coached the deponent by placing a note in front of the deponent and instructing her not to divulge its contents. Id. at 1558-1559. Here, Walters testified as to the note’s contents, which suggested that it (the note) was only trying to clarify the scope of the question being asked. Unlike in Tucker, the record here does not suggest that Walters or plaintiff’s counsel was attempting to impede discovery.

Contrary to plaintiff’s argument, because defendant’s motion was brought pursuant to Code of Civil Procedure section 2023.030, it was not required to be filed within 60 days after the deposition (as would be the case if the motion were brought under section 2025.480), and no meet and confer declaration was required (as it would be under section 2030.300, subdivision (b)).

The Court declines to award sanctions.

Conclusion

The motion is DENIED. Defendant to give notice.