Case Number: BC634465 Hearing Date: May 15, 2019 Dept: 24

Plaintiff Rosa May’s motion for monetary sanctions is GRANTED. Monetary sanctions will be will be determined at the hearing. Defendant is further ordered to comply with the December 14, 2018 court order and provide the relevant PMK for deposition at a mutually agreeable time and place within 10 days.

In this lemon law action, Plaintiff Rosa May (“Plaintiff”) alleges she purchased a Certified Pre-Owned 2009 Mercedes-Benz on March 27, 2017 that suffered from defects and nonconformity to warranty, including, but not limited to, issues with the airbag, SRS, cam solenoid, and other defects. Plaintiff alleges she took the vehicle to Defendant Mercedes-Benz USA, LLC’s (“Defendant”) authorized service and repair facility numerous times but they were unable to repair the issues. Thus, Plaintiff filed this action against Defendant on September 20, 2016 for restitution and damages for violation of the Song-Beverly Consumer Warranty Act. On June 16, 2017, Defendant filed a cross-complaint for fraud, equitable indemnity, contribution and implied indemnity against Takata Corporation and TK Holdings, Inc.

On December 14, 2018, the Court granted Plaintiff’s Motions to Compel Deposition of Defendant’s Person Most Qualified and to Produce Documents. The Court ordered that the depositions were to be completed by January 18, 2019. The Court held an IDC on January 7, 2019, where certain issues regarding the scope of the deposition were resolved.

On March 27, 2019, Plaintiff filed the instant motion for discovery sanctions against Defendant for failure to comply with the Court’s orders regarding the depositions. On May 2, 2019, Defendant filed an opposition. On May 9, 2019, Plaintiff filed a reply.

Legal Standard

If a party fails to obey a court order compelling it to provide a discovery response, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction . . . .” (CCP §§ 2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery process, which includes disobeying a court order to provide discovery, is conduct subject to sanctions. (CCP § 2023.010(g).) Possible sanctions are:

(a) [A] monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct….

(b) [A]n issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) [A]n evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

(d) [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.

(e) [A] contempt sanction by an order treating the misuse of the discovery process as a contempt of court.

(CCP § 2023.030 [emphasis added].)

The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884 [interpreting former statute dealing with “refusal” to comply].) However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

“The trial court may order a terminating 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.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1224 [terminating sanctions by trial court not an abuse of discretion where defendant repeatedly violated court orders to produce records].) “[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.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [terminating sanctions order reversed where there was no showing the court could not have obtained compliance by using lesser sanction e.g., issue or evidentiary].) In extreme cases, however, terminating sanctions as a first measure are authorized. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.)

Discussion

Plaintiff offers the following facts to justify its request for sanctions against Defendant and its counsel. The Court granted Plaintiff’s compel motion on December 14, 2018. On that date, the Court ordered that Defendant produce a witness for deposition no later than January 18, 2019. The Court further ordered an informal discovery conference on January 7, 2019. Plaintiff declares that the Court ordered trial counsel to be present for the IDC. (Ullman Decl., ¶ 8.) At the January 7, 2019 IDC, Defendant’s trial counsel failed to appear, and Defendant’s counsel was not prepared to meet and confer on the deposition topics. (Id., ¶ 9.) The Court continued the IDC to February 4. Jon D. Universal (“Universal”), Defendant’s purported lead trial counsel, failed to appear at the February 4, 2019 conference. (Id. ¶ 10.) Defendant did meet and confer at the IDC, and agreed to produce a witness within 45 days. (Ibid.) Plaintiff sent a follow up correspondence on February 12, 2019, confirming the agreement and requesting mutually agreeable deposition dates. (Id., Ex. 2.)

Based on the above facts, Plaintiff seeks the following alternative sanctions against Defendant for its willful failure to comply with this Court’s Discovery Orders: 1) terminating sanctions; 2) issue/evidentiary sanctions precluding Defendant from introducing any evidence that indicates that Plaintiff’s defects were not substantially impairing to use, value, and/or safety, or evidence which indicates that it was not aware of the defects; and/or 3) monetary sanctions in the amount of $10,109.62 against Defendant.

Defendant argues that the order compelling the deposition is moot because the Court continued the IDC and resolved issues informally past the January 18, 2019 deadline. Defendant also argues that Counsel acted in good faith and inadvertently overlooked an email from Plaintiff’s counsel. (Universal Decl., ¶ 5.) Defendant asserts that given the agreements the parties had already reached, there is no indication that it is trying to renege on its prior agreements.

Defendant also notes that there is no lead trial counsel yet, and therefore none to be ordered to appear the IDC. (Nassirian Decl., ¶ 3.)

Defendant ignores the undisputed fact that the Court did order Defendant to produce a witness for deposition. Defendants relies on the Court’s attempt to informally resolve the dispute after the deadline for their compliance to hold that there was no discovery order. Indeed, the Court wished to resolve the issues in a mutually agreeable fashion, which is why it did not strictly enforce the January 17, 2019 date. The Court relied on counsel’s assurances that it would be complete within 45 days. Defendant concedes that counsel did agree to produce a PMK at the February 4, 2019 IDC. (Kahn Decl., ¶ 4.) However, the prior order was never vacated or modified. Defendant offers no authority that an IDC process somehow invalidates a prior court order. At best, this may provide an excuse for non-compliance, which will be discussed below. Therefore, the Court finds that Defendant failed to comply with the December 14, 2018 court order.

Defendant offers excuses for its non-compliance of 1) their informal attempts to resolve the dispute, and 2) their inadvertence in failing to respond to Plaintiff’s follow up email. Generally, the Court would agree that if the parties meet and confer in good faith, come to an IDC in good faith, and mutually agree to extend the dates of a deposition, a party may reasonably rely on those events to conclude that they do not need to strictly comply with a prior court order’s set date. The Court would find a sufficient excuse for non-compliance with the December discovery order if Defendant complied with the agreed upon time extension. However, Defendant did not comply with either the initial order or its subsequent assurances that the deposition would occur. Defendant has still failed to produce any witness for deposition for five months after it was ordered to produce their witness. Defendant offers no counterargument to Plaintiff’s good faith attempts to reach an agreement regarding a deposition date. (See Ullman Decl., ¶ 10, Ex. 2; Universal Decl., ¶ 5.) Instead, Defendant only argues that it inadvertently missed the letter. Of course, this does not excuse its continued refusal to produce the witness.

Even if the December 14, 2018 court order somehow became “moot”—despite the fact that no deposition has occurred, and no order invalidated it—there is still sufficient facts here to find that Defendant and counsel engaged in a misuse of the discovery process. As noted by the above authorities, the Court may sanction any conduct which it finds to be an abuse of the discovery process. A misuse of the discovery process is neither limited to disobeying a court order to provide discovery, nor any other conduct found exclusively within CCP section 2023.010. That section only sets forth a nonexclusive catalog of misuses of discovery for which sanctions may be imposed. Sanctions based on a court’s inherent power to control the litigation before it have been upheld in some circumstances. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 291 [discretion to preclude evidence in order to prevent disclosure of confidential information and ensure a fair trial]; Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 763-764 [discretion to dismiss action for egregious misconduct if no other remedy could ensure a fair trial].) Other forms of discovery misuse are also sanctionable. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1440 [a motion for reconsideration of sanction award constituted a separate discovery abuse]; Cedars-Sinai Med. Ctr. v. Sup.Ct. (Bowyer) (1998) 18 Cal.4th 1, 12 [destruction of evidence]; Palm Valley Homeowners Ass’n, Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 563-564 [participating in discovery on behalf of suspended corporation].) Thus, to the extent that Defendant argues that the order was “moot” the Court would still find a misuse of the discovery process for its failure to produce its witness within 45 days of the February IDC, after being formally ordered to produce the witness a month prior.

The Court does agree with Defendant insofar as its abuse of the discovery process does not yet justify terminating sanctions or the requested evidentiary/issue sanctions. Plaintiff has not demonstrated that this inability to depose Defendant’s PMK has led to any significant prejudice to her case. The deposition will still occur, and trial is not until October 1, 2019. The Court further finds that monetary sanctions will be enough to compel discovery in this instance. However, continued failure to follow the Court’s orders will result in harsher sanctions, including possible terminating sanctions. The Court will hear arguments regarding the appropriate amount of monetary sanctions.

Accordingly, Plaintiff’s motion for sanctions is GRANTED. Defendant is further ordered to comply with the December 14, 2018 court order and provide the relevant PMK for deposition at a mutually agreeable time and place within 10 days.

Moving party is ordered to give notice.