Case Number: BC673642 Hearing Date: October 29, 2019 Dept: 4A

Motion for Terminating Sanctions

Having considered the moving papers, opposition, and reply. The Court rules as follows.

BACKGROUND

On August 24, 2017, Plaintiff Gabriel Tolmajyan (“Plaintiff”) filed this action against Defendants Ryan Gallardo and Onofre Gallardo alleging motor vehicle negligence arising from an automobile collision that occurred on September 9, 2016.

On July 3, 2019, this Court ordered Defendant Ryan Gallardo (hereinafter referred to as “Defendant”) to provide verified responses, without objections, to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One) within twenty (20) days of the Order. (Saylor Decl. Exh. 1.) The Court deemed the matters asserted in Plaintiff’s Requests for Admission (Set Two) to be true against Defendant, and ordered Defendant to appear for a deposition within 30 days of the Order. (Id.) Finally, this Court ordered Defendant, his counsel of record, and his former counsel of record to pay $1,954 in sanctions.

On September 17, 2019, Plaintiff filed the present motion for an order imposing terminating sanctions entering default judgment of $146,018 for Defendant’s failure to comply with the Court’s July 3, 2019 order.

Trial is set for March 20, 2020.

PARTY’S REQUEST

Plaintiff requests that this Court grant terminating sanctions by entering default judgment against Defendant Ryan Gallardo in the amount of $146,018 and moves for sanctions in the amount of $4,579.15.

LEGAL STANDARD

If a party fails to comply with a court order compelling a response to interrogatories or a request for production, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).) California Code of Civil Procedure section 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 . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues 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, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Ibid. (citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); 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).)

DISCUSSION

Plaintiff’s motion for terminating sanctions is premised upon Defendant’s allegedly willful failure to comply with this Court’s July 3, 2019, order. As stated above, on July 3, 2019, this Court ordered Defendants to provide verified responses, without objections, to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One) within twenty (20) days. (Saylor Decl. Exh. 1.) The Court deemed the matters asserted in Plaintiff’s Requests for Admission (Set Two) as true against Defendant, and ordered Defendant to appear for a deposition within 30 days. (Id.) Finally, this Court ordered Defendant, his counsel of record, and his former counsel of record to pay $1,954 in sanctions. However, [w]hether Defendant complied with the Court’s order to pay monetary sanctions is irrelevant to the court’s determination as to whether terminating sanctions should be imposed, because 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.)

Thus, Defendant was ordered to provide responses without objections by July 23, 2019, and was ordered to submit to a deposition by August 3, 2019. On July 8, 2019, counsel for Plaintiff reached out to Defense counsel Scott Spriggs to arrange for the subject deposition. (Saylor Decl. Exh. 4.) Prior to the July 3, 2019 Order, Defendant had served responses to the discovery requests but asserted 50 identical conclusory objections. (Id., Exh. 5.) On July 8, 2019, Plaintiff’s counsel also sent Defense counsel a letter, noting that the June 28, 2019, discovery responses served on Plaintiff were nothing but objections, and that the Court had ordered Defendant to provide objection-free responses. (Id. Exh. 6.) A review of the subject June 28, 2019 responses reveals that Defendant asserted the identical objection to every response stating that the interrogatory calls for expert testimony and that responding party lacks sufficient personal knowledge. (Id. Exh. 5.)

Plaintiff’s counsel declares that he received no objection-free responses as ordered by the Court, and that neither former Defense counsel (Law Offices of Gregory J. Lucett) nor current Defense counsel (Kinkle, Rodiger & Spriggs) responded to letters regarding the Court’s Order or the imposed sanctions. (Id. ¶ 14.) Plaintiff’s counsel declares that no deposition dates have been provided, nor have any compliant responses been served. (Id. ¶¶ 17-18.)

In opposition, Defendant argues that he has not refused to participate in a deposition, but rather he is unable to travel to a proper deposition location under Cal. Civ. Code § 2025.250(a). The opposition makes no mention of the discovery responses which were due on July 23, 2019. Defendant has failed to comply with this Court’s July 3, 2019 Order, but he argues that the failure to comply was not willful. Defendant argues that “DEFENDANTS reside in Van Couver, Washington and the parties have yet to arrange a convenient location, date and time to conduct the deposition, which is not a lack of cooperation but a lack of coordination.” (Opp. 3:19-21.) It is disingenuous for Defendant to raise such an argument when Defendant has failed to reply to Plaintiff’s counsel’s attempts to meet and confer regarding the deposition. (Saylor Decl. ¶ 16.) There can be no coordination or cooperation where one side of this action engages in a policy of radio silence. Plaintiff’s counsel declares that he also made “at least four or five calls to Mr. Gallardo’s various lawyers trying to obtain discovery before filing motions to compel.” (Id. ¶ 24.)

Defendant also argues that “pursuant to California Civil Code § 2025.260, the party giving Notice of Deposition bears the financial burden to arrange for DEFENDANTS appearance at the specified time and location and, here, PLAINTIFF has not done so,” making the issue a matter of “PLAINTFF’s failure to pay for DEFENDANT’s transportation costs to a deposition” rather than a matter of disobedience. (Opp. 4:23-25.) While this contention may have been a good rejoinder to Defendant’s motion to compel, it provides no excuse for Defendant’s failure to seek relief from the Court order compelling the deposition, resistance to good faith meet and confer efforts, and non-compliance with a valid Court order. Nor does it explain Defendant’s failure to provide verified responses without objections to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One).

As of the date of this hearing, Defendant has been in non-compliance with the July 3, 2019, Order for just shy of ninety (90) days. Defendant has provided no explanation for failing to communicate with Plaintiff’s counsel regarding a scheduling of the deposition, and does not explain his failure to provide the ordered discovery responses without objections or pay the imposed sanctions.

An order granting terminating sanctions is a drastic remedy that should only be imposed where a party has engaged in a egregious pattern of discovery abuse or other misconduct. Defendant’s conduct in this case, while non-compliant with an outstanding order and lacking in the kind of diligence necessary to arrange the deposition of an out-of-state party, does not rise (or descend) to the level of misconduct justifying terminating sanctions. The Court concludes that lesser sanctions are available as an interim step to compel Defendant’s satisfaction of his discovery obligations.

Based on the foregoing, the Court orders Defendant to comply with the July 3, 2019, Order within fourteen (14) days, specifically by: (1) providing responses without objections to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One), (2) engaging in a good faith meet and confer with Plaintiff’s counsel to schedule a deposition within thirty (30) days of this Order, and (3) by paying $1,954 in sanctions.

Further, the Court imposes additional monetary sanctions to signal to Defendant and defense counsel the need to comply with this Court’s orders in a prompt and meaningful manner. Plaintiff requests $4,579.15 in sanctions for Defendant’s misuse of the discovery process under Code Civ. Proc. §2023.030. Saylor declares that “[t]he opposition took at least five hours of my time to draft, file, and serve. This is, without a doubt, lower than the real amount of time.” (Saylor Decl. ¶ 27.) Presumably, Saylor intended to declare that the “motion” and not the “opposition” took five (5) hours to draft. Saylor declares that he anticipates two (2) hours for attending the hearing, and two (2) hours for drafting a reply. (Id.) The filing of the motion cost $68.40, the filing of the Reply cost $6.75, and Counsel requests $4 for transportation to the Court. (Id.) Counsel requests an hourly rate of $500.

The Court finds the requested attorney’s fees and costs excessive in light of the short relatively simple briefs submitted. While the Court does not question counsel’s hourly rate, this motion could have been drafted at much less cost by a less experienced lawyer. As a result, the Court orders Defendant Ryan Gallardo and his counsel of record to pay Plaintiff $1,875.15 ($300/hr. x 6 hours plus filing fees of $75.15), jointly and severally, within thirty (30) days of this Order.

Defendant is ordered to give notice of this ruling.