| Hernandez v. Commands Delivery Systems | CASE NO. 113CV256103 | |
| DATE: 19 December 2014 | TIME: 9:00 | LINE NUMBER: 18 |
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 18 December 2014. Please specify the issue to be contested when calling the Court and counsel.
On 19 December 2014, the motion of Defendants Command Delivery Systems , Inc. and James Hunt for issue, evidence and terminating sanctions against Plaintiff was argued and submitted.
Plaintiff did not file formal opposition to the motion.[1]
- Statement of Facts.
The action was filed 14 November 2013.
This is a personal injury action arising from a motor vehicle accident on the Capitol Expressway offramp from Highway 87 in San Jose. Plaintiff seeks to recover monetary damages for personal injuries, wage loss, property damage, and loss of earning capacity damages allegedly caused by the Defendant.
- Discovery Dispute.
On 11 July 2014, Defendant served on Plaintiff Defendant’s Notice of Plaintiff’s Deposition and Request for Production of Documents. Attempts by Defense Counsel to request dates of plaintiff’s availability made prior to serving notice were unreturned. Therefore, Defendant scheduled Plaintiff’s deposition for 28 July 2014 at 10:00 a.m., located at Defense Counsel’s office.
On 25 July 2014, Plaintiff’s counsel’s assistant called to notify Defense Counsel that Plaintiff was not available on 28 July 2014 for deposition. Defense Counsel requested Plaintiff’s Counsel call back with alternative dates for plaintiff’s availability to which Defense Counsel received no return call.
On 25 July 2014, Defense Counsel sent to Plaintiff’s Counsel a “meet and confer” letter requesting Plaintiff’s availability for deposition the last two weeks of August 2014, to which no response was received.
On 18 August 2014, Defendant served on Plaintiff a Notice of Plaintiff’s Deposition and Request for Production of Documents. Plaintiff’s deposition was scheduled for 25 September 2014 at 10:00 a.m., located at Defense Counsel’s office.
On 24 September 2014, Plaintiff’s Counsel’s office contacted Defense Counsel’s office requesting a copy of the notice for Plaintiff’s deposition to which Defense Counsel’s office provided a copy.
As of 25 September 2014, Plaintiff did not object to either notice.
On 25 September 2014, after Plaintiff and Plaintiff’s Counsel failed to appear, Defense Counsel created a record of plaintiff’s non-appearance at 10:34 a.m. At approximately 10:50 a.m., plaintiff’s counsel arrived, citing traffic for his tardiness, and asked Defense Counsel if Plaintiff appeared for the deposition and was informed plaintiff did not appear. On 2 October 2014, Defendant served Defendant’s Motion to Compel Plaintiff’s Deposition, Production of Documents, and for Monetary Sanctions on Plaintiff. Plaintiff did not file opposition to the motion, which if filed, was due 20 October 2014.
- Discovery Dispute.
Following the hearing on 31 October 2014, this Court issued a lawful court order which stated the following:
“Defendants’ request for an order granting Defendant’s Motion to Compel Plaintiff’s Deposition and Production of Documents is GRANTED. Plaintiff is to appear for a deposition and produce documents at any code compliant location within 20 days of the date of the filing of this order.
Defendants’ request for monetary sanctions in the amount of $1,219.00 in relation to Defendants’ Motion to Compel Plaintiff’s Deposition and Production of Documents is DENIED.”
In the current motion, Defendants in form this Court that on 3 November 2014 day notice the deposition of Plaintiff 417 November 2014. Between those dates, counsel for Plaintiff did not make any attempt to contact Defense counsel regarding the deposition or present any objections to the proceeding. There was no appearance for the deposition. An appropriate record of the nonappearance was made.
Defendants now seek issue, evidence and terminating sanctions.
III. Analysis.
C.C.P. §2023.030(d) provides that the Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. The terminating sanction may be imposed by one of the following orders:
- An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process;
- An order staying further proceedings by that party until an order for discovery is obeyed;
- An order dismissing the action, or any part of the action, of that party; or
- An order rendering a judgment by default against that party. C.P. §2023.030(d).
Disobeying a court order to provide discovery is a misuse of the discovery process. C.C.P. §2023.010(g). Defendant argues Plaintiff has failed to comply with the previous court orders, thereby engaging in a misuse of the discovery process. To demonstrate Plaintiff’s non-compliance, Defendant points to a number of documents she claims have not been produced.
Terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party. (R.S. Creative, Inc. v. Creative Cotton, Ltd., (1999) 75 Cal.App.4th 486, 496.) Two facts are absolutely prerequisite to imposition of a terminating sanction: there must be a failure to comply, and the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)
The motion of Defendants Command Delivery Systems , Inc. and James Hunt for issue, evidence and terminating sanctions against Plaintiff is GRANTED. The complaint is STRICKEN. Defendants are entitled to judgment.
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DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” Rule of Court 3.1348(b).
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