Case Number: BC589837 Hearing Date: August 09, 2018 Dept: 4

MOVING PARTY: Defendants Mikiro Amemiya and Francis Yeo

RESPONDING PARTY: Plaintiffs Francisco Armenta and Maria Zavala

Motion to Dismiss and Request for Monetary Sanctions, or, Alternatively, for Evidentiary, Issue, and/or Monetary Sanctions

The court considered the moving, opposition, and reply papers and oral argument at hearing on July 19, 2018. The court ordered plaintiffs to appear for their depositions on July 25 and July 26, 2018. The hearing was continued to the herein date.

BACKGROUND

On August 6, 2015, plaintiffs Francisco Armenta and Maria Zavala filed a complaint against defendants Mikiro Amemiya and Francis Yeo for motor vehicle negligence based on a August 13, 2013 collision.

On April 24, 2018, the court granted defendants’ motion to compel the depositions of plaintiffs.

Trial is set for January 22, 2019.

DISCUSSION

Defendants request that the court impose terminating sanctions and monetary sanctions against plaintiffs for their failure to comply with the court’s order dated April 24, 2018. Alternatively, defendants request that the court order issue and/or evidentiary sanctions that it deems proper, such as precluding plaintiffs from testifying, from producing records, from presenting percipient witnesses, and/or presenting experts.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP § 2025.450(h) (depositions); § 2030.290(c) (interrogatories); § 2031.300(c) (demands for production of documents). CCP § 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP § 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“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 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

On April 24, 2018, the court entered an order compelling plaintiffs to appear for deposition at the law offices of Ford, Walker, Haggerty & Behar, located at One World Trade Center, 27th Floor, Long Beach, CA, 90831-2700 within 15 days. Each plaintiff and his or her attorney of record Hamed Yazdanpanah were ordered to pay monetary sanctions in the amount of $340 within 30 days. Although plaintiffs served an opposition, plaintiffs’ counsel did not appear at the hearing. Defendants served notice of the court’s ruling on April 27, 2018.

According to defendants, plaintiffs have not complied with that order. On May 4, 2018, defendants had served notice for plaintiffs’ depositions for May 9, 2018, by fax and email. On May 8, plaintiffs’ counsel sent an email to defense counsel stating that they just received the deposition notice via email, and that “it is nearly impossible to get the Plaintiff available. Would you be willing to extend the deposition of the Plaintiff? We have been working on dates and will get them to you ASAP.” In a letter dated May 8, to plaintiffs’ counsel, defense counsel reminded plaintiffs that the depositions were court-ordered and refused to continue the deposition date.

In opposition, plaintiffs contend that they were not given sufficient notice of the May 9 deposition and that counsel was unable to contact plaintiffs by the date set for deposition. On May 14, 2018, plaintiffs’ counsel sent an email to defense counsel, stating “I have left several messages and have not heard back. Other than the fact of the short notice, we had communication issues with our clients. We now have their current contact info and in fact they are at my office now. We can waive time and have them appear for the depositions. Please email me a few dates you are available so that we can arrange for the depositions at your office.” On May 17, 2018, plaintiffs’ counsel sent another email to defense counsel, stating “I have made no less than 11 attempts to get this back on calendar now that we have located our clients. If you do wish to proceed with the depositions, please do email me back.” On June 4, 2018, plaintiffs’ counsel’s office sent an email to defense counsel stating “[p]lease allow this email to confirm we have mailed, faxed, and emailed you on various occasions regarding scheduling our client’s deposition. Unfortunately, to date, we have not received a response from you or your office regarding scheduling a date for the deposition.”

Defendant’s motion was filed on June 6, 2018. At the hearing on July 19, 2018, the court ordered that plaintiffs appear for deposition. Although plaintiffs have appeared for deposition, defendant still seeks monetary sanctions.

Whether plaintiffs complied with the court’s order to pay monetary sanctions is not relevant to the court’s determination as to whether terminating sanctions¿should be imposed, and the court has not considered that factor in making its determination. A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 610, 615.¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, CCP §§ 680.010, et seq. Id.

The court finds that plaintiffs have engaged in conduct that is a misuse of the discovery process by disobeying the court’s May 24, 2018 order by failing to appear for deposition. Plaintiffs were given notice of the court’s order prior to defendants’ notice of deposition for May 9, 2018. Plaintiffs’ counsel’s failure to locate their clients after being given notice of the court’s order and failure to attempt to provide dates that were agreeable to plaintiffs amounts to willful violation of the court order. Plaintiffs’ counsel could have and should have contacted their clients after receipt of the notice of the court’s order, and their failure to do so contributed to their failure to solve the communication problems with their clients until May 14, a date past the 15-day period ordered by the court.

The court thus finds that it is appropriate, and exercises its discretion, to impose additional monetary sanctions against plaintiffs and plaintiffs’ counsel pursuant to CCP §2023.030. Defendants request $1,404.00 jointly and severally against plaintiffs, plaintiffs’ counsel of record, Hamed Yazdanpanah, Esq. of the Law Offices of Hamed Yazdanpanah & Associates and Mark Bloom of B/B Law Group LLP. The court notes that on June 15, 2018, B/B Law Group LLP filed a notice of disassociation of counsel for plaintiffs. The court finds that it is reasonable to impose sanctions in the amount of $620 ($140/hr. x 4 hrs. plus $60 filing fee) against plaintiffs and Hamed Yazdanpanah, Esq.

The motion is thus GRANTED as to monetary sanctions and DENIED as to terminating, evidentiary, and issue sanctions because plaintiffs have appeared for their depositions.

The court orders that plaintiffs and plaintiffs’ counsel Hamed Yazdanpanah, Esq. pay to defendants a monetary sanction in the amount of $620 within 20 days.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 9, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court