Case Name: Nancy Foster v. Rosanna Dong, et al.

Case No.: 2015-1-CV-283120

Motion for Order Imposing Terminating Sanctions or Issue Sanctions; Request for Monetary Sanctions

Factual and Procedural Background

On July 30, 2013, defendant Rosanna Dong negligently operated a motor vehicle at State Route 82, approximately 42 feet north of Ventura Avenue, in Palo Alto causing injury and damage to plaintiff Nancy Foster. (Complaint, ¶¶MV-1 to MV-2.) Defendant Li Ming Dong negligently owned and/or entrusted the motor vehicle to defendant Rosanna Dong. (Complaint, ¶MV-2.)

On July 16, 2015, plaintiff Nancy Foster (“Foster”) filed a Judicial Council form complaint against defendants Rosanna Dong and Li Ming Dong asserting a single cause of action for negligence—motor vehicle.

On March 28, 2016, defendant Rosanna Dong (“Dong”) filed an answer to plaintiff Foster’s complaint.

At a trial setting conference on November 14, 2017, the court (Hon. Folan) set the matter for trial on March 26, 2018.

On March 16, 2018, plaintiff Foster made an ex-parte application to continue the trial. On March 23, 2018, the court issued an order continuing the trial to August 27, 2018 and reopening discovery until 30 days prior to the new trial date. In the order, the court wrote, “Trial is set on Aug. 27, 2018. This is a date certain. No further continuances.”

Discovery Dispute

On November 14, 2017, defendant Dong filed a motion to compel plaintiff Foster’s attendance at deposition.

On February 21, 2018, the court issued a tentative ruling granting defendant Dong’s motion as unopposed. On February 22, 2018, the tentative ruling was adopted by the court as no party requested oral argument.

On February 22, 2018, defendant Dong’s counsel wrote a letter to plaintiff Foster offering to have the deposition at a neutral location.

On March 1, 2018, defendant Dong served plaintiff Foster with an amended notice of deposition for March 14, 2018.

On March 12, 2018, defendant Dong’s counsel responded in writing to plaintiff Foster’s voice message of March 9, 2018, again offering to have the deposition occur at a neutral location.

Plaintiff Foster did not provide dates or locations as requested. Consequently, defendant Dong’s counsel scheduled a deposition for May 16, 2018 at his office. Plaintiff Foster appeared on that date but immediately questioned the impartiality of the court reporter and made clear she would not proceed with the deposition. Defendant Dong’s counsel and plaintiff Foster agreed that plaintiff Foster could provide names of suitable court reporters and locations where plaintiff would be comfortable, but plaintiff never provided any response.

On May 24, 2018, defendant Dong served plaintiff Foster with an amended notice of deposition for June 15, 2018.

On June 14, 2018, plaintiff Foster contacted defendant Dong’s counsel to advise she would not be appearing at the deposition scheduled for June 15, 2018 as the location and court reporter were not acceptable to her.

On June 18, 2018, defendant Dong’s counsel sent another letter to plaintiff Foster requesting the names of court reporters acceptable to her. Plaintiff Foster has not made any effort to cooperate with defendant Dong’s counsel in setting her deposition.

On July 9, 2018, defendant Dong appeared ex-parte to apply for an order shortening time for hearing on a motion for order imposing terminating or issue sanctions against plaintiff Foster. On July 12, 2018, the court (Hon. Pierce) issued an order allowing defendant Dong to file such a motion by July 19, 2018 to be heard on August 7, 2018.

On July 13, 2018, defendant Dong filed the motion now before the court, a motion for terminating and/or issue sanctions against plaintiff Foster along with a request for monetary sanctions.

III. Merits.

“Misuses of the discovery process include, but are not limited to, the following: … Failing to respond or to submit to an authorized method of discovery[;] Disobeying a court order to provide discovery.” (Code Civ. Proc., §2023.010, subds. (d) and (g).)

To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
(a) The court may impose 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(b) The court may impose an 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) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.
(d) The court may impose 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.

(Code Civ. Proc., §2023.030.)

Terminating sanctions should only be applied after lesser sanctions have proven ineffective at compelling compliance. (R.S. Creative Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)). An award of sanctions is discretionary, and the court should consider a variety of factors in exercising this discretion. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.) “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” (Laguna Auto Body v. Super. Ct. (1991) 231 Cal.App.3d 481, 490, citing Motown Records Corp. v. Super. Ct. (1984) 155 Cal.App.3d 482, 489.) The sanctions imposed must be tailored to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)

Plaintiff Foster filed opposition on July 26, 2018 but in this court’s review, plaintiff Foster’s opposition is largely incoherent, incomprehensible, and irrelevant. Plaintiff Foster’s opposition begins by stating, “Foster called for deposition apptmt 7x, coerced time phoning sun outside caused damaged face & hands, apptmt scheduled. Deposition request name court reporter, request copy of questions be submitted in advance by Aug 7 for Aug 14, 2018 1 pm. Pulone Court Reporting, 1550 The Alameda, Suite 150, San Jose, CA 95126, 480-280-1252. Thank You.” This statement is the only statement the court finds relevant to the issue at hand. The court disregards the balance of plaintiff Foster’s opposition.

The court understands plaintiff Foster to assert that she called defendant Dong’s counsel seven times to schedule a deposition. Plaintiff Foster’s assertion is not supported by any admissible evidence. To the extent plaintiff Foster is requesting the specific name of the court reporter and requesting a copy of the questions that defendant Dong’s counsel intends to ask at deposition, plaintiff has not provided any legal authority or demonstrated good cause in support of such requests. The court interprets the remainder of plaintiff Foster’s statement as her willingness to appear for deposition on August 14, 2018 at 1:00 pm at Pulone Court Reporting, 1550 The Alameda, Suite 150, San Jose, CA 95126.

In view of the factual circumstances presented to the court, defendant Dong’s motion for terminating and/or issue sanctions is DENIED without prejudice. Plaintiff Foster shall appear for her deposition on August 14, 2018 at 1:00 pm at Pulone Court Reporting, 1550 The Alameda, Suite 150, San Jose, CA 95126. Plaintiff Foster’s failure to appear will result in further sanctions up to and including terminating sanctions. Defendant Dong’s request for monetary sanctions is GRANTED. Plaintiff Foster shall pay $375.68 to defendant Dong within 30 calendar days from notice of entry of this order.