Case Number: BC570149 Hearing Date: June 14, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR TERMINATING SANCTIONS AND MONETARY SANCTIONS; MOTION DENIED, SANCTIONS AWARDED

On January 23, 2015, Plaintiff Alfonso Florentino (“Plaintiff”) filed this action against Defendant Nelson Ariel Sazo (“Defendant”) for negligence arising out of a June 27, 2013 automobile accident. On May 17, 2016, Defendant served written discovery requests on Plaintiff, but Plaintiff served no responses. (Declaration of Sheryl Lee Reeves, ¶¶ 2, 3.) On October 12, 2016, the Court granted Defendant’s motions to compel Plaintiff’s responses to discovery and Plaintiff was ordered to serve verified responses without objections within ten (10) days. (Reeves Decl., ¶ 4.)

On November 8, 2016, Plaintiff failed to appear for trial and the Court dismissed the action. Defendant served a Notice of Ruling and Plaintiff then served unverified and untimely responses to discovery. (Reeves Decl., ¶ 7.) On May 5, 2017, the Court granted Plaintiff’s Motion to set aside dismissal. After the case was reinstated, Defendant sent a meet and confer letter to Plaintiff regarding the unverified discovery responses but received no response. (Reeves Decl., ¶ 8.)

On August 8, 2017, the case was again dismissed for Plaintiff’s failure to appear on the trial date. Thereafter, Plaintiff served verifications for discovery responses and the monetary sanctions previously ordered to be paid. On March 14, 2018, the Court again granted Plaintiff’s Motion to set aside dismissal. To date, Plaintiff has not paid the $400.00 sanction ordered to be paid to Defendant for reinstatement sanctions. (Reeves Decl., ¶ 11.)

On March 20, 2018, Defendant served a Notice of Taking of Plaintiff’s Deposition, scheduling Plaintiff’s deposition for April 4, 2018. (Reeves Decl., ¶ 12.) Plaintiff failed to appear for his deposition and has not returned defense counsel’s requests to reschedule. (Reeves Decl., ¶¶ 16, 19.) Defendant seeks terminating sanctions and monetary sanctions.

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code of Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

The Court may impose an issue, evidence, or terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code of Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code of Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code of Civ. Proc., § 2023.030, subd. (d)(3).) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party on whom the interrogatories were served has the burden of showing that the failure to respond was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

Plaintiff’s counsel declares Plaintiff’s deposition was unilaterally noticed for April 4, 2018, and she was unable to contact Plaintiff prior to the deposition date. Counsel states she notified defense counsel prior to the deposition that it could not go forward. (Declaration of Michelle Iarusso, ¶¶ 2, 3.) Counsel reconnected with Plaintiff in mid-April 2018 and informed counsel he has been having trouble with his phone. (Iarusso Decl., ¶¶ 4, 5.) Plaintiff advised he would make himself available for his deposition and Plaintiff’s counsel has contacted defense counsel in an attempt to reschedule the deposition. (Iarusso Decl., ¶ 6.)

The Court finds Plaintiff did not willfully disobey the Court’s order and fail to appear at his deposition, as it appears counsel has been out of contact with Plaintiff. Terminating sanctions are not warranted, but monetary sanctions are, based on Plaintiff’s failure to pay the previously ordered monetary sanction and failure to timely meet and confer with defense counsel to avoid the costs of the failed deposition.

Accordingly, Plaintiff is ordered to appear for his deposition within fifteen (15) days of the date of this Order, or other day the parties agree to. Plaintiff and Plaintiff’s counsel, jointly and severally, are also ordered to pay: $400.00 fee previously ordered to be paid when Plaintiff moved to set aside dismissal; $250.00 for failing to appear at the deposition; and $355.00 for one hour preparing this Motion at counsel’s $295.00 hourly rate and the $60.00 filing fee. This $1,005.00 monetary sanction is to be paid to defense counsel within twenty (20) days of the date of this Order.

Moving party to give notice.