Nathan Edwards v. Bernabe Gundayao

Nathan Edwards v. Bernabe Gundayao CASE NO. 113CV243924
DATE: 19 September 2014 TIME: 9:00 LINE NUMBER: 9

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 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 September 2014, the motion of Defendant for Terminating Sanctions was argued and submitted.

Plaintiff did not file formal opposition to the motion.[1]

I.       Statement of Facts

Plaintiff seeks damages for injuries he allegedly sustained around 9 April 2011, while riding a bicycle near the intersection of El Camino Real and Shoreline Blvd. in the City of Mountain View.  Plaintiff contends he was struck by a car driven by Defendant.  The complaint was filed in April 2013.

II.      Discovery Dispute

On 5 September 2013, Plaintiff failed to appear for a noticed deposition.  Plaintiff’s attorney was present.

On 2 October 2013, Defendant served a request to inspect Plaintiff’s documents and things, including the bicycle at issue.

On 22 October 2013, Plaintiff again failed to appear for a noticed deposition.  Plaintiff’s attorney was again present.

On 10 January 2014 this Court ordered Plaintiff to present documents and things for inspection, and submit to a deposition without objection.  Plaintiff was also ordered to pay $532.50 in monetary sanctions.

Before another deposition notice and request for production/inspection could be sent, Plaintiff’s attorney notified Defendant that Plaintiff’s attorney would be withdrawing from the case.

On 24 March 2014, Plaintiff’s attorney filed and was granted a motion to withdraw.

On 29 May 2014, Defendant served on Plaintiff Re-Notice of Taking Deposition With Request for Production of Documents and Defendant’s Request for Production and Inspection of Tangible Things, Set Two.  The deposition was noticed for 10 July 2014, and the request for production was due on 7 July 2014.

Plaintiff has not responded to any of Defendant’s attempts at communication.  Plaintiff has not responded to any discovery requests, and has failed to make the sanctions payment this Court ordered on 10 January 2014.  Plaintiff has made no efforts to communicate with Defendant.

III.     Terminating Sanctions

  1. Non-Monetary Sanctions Generally

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (See Rule of Court 2.30.)  The party’s motion must also state the applicable rule that has been violated. (Id.)

Non-monetary sanctions are imposed upon an incremental basis depending upon the severity of the violation. (See Doppes 174 Cal.App.4th at 992.) “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Id. (internal quotation marks and citations omitted).)

Additionally, the trial court should “attempt to tailor the sanction to the harm caused by the withheld discovery.” Id.  The Court’s discretionary authority in determining the appropriate sanction is limited by the principle that discovery sanctions are meant to be remedial rather than punitive. (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381.) Put another way, the discretionary imposition of a sanction is proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought, but not when it places the prevailing party in a better position than if discovery had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958.)

  1. Motion for Terminating Sanctions

Defendant motions for terminating sanctions.  Defendant’s request is code compliant.

Code of Civil Procedure, § 2023.030(d) states that: “the Court may impose terminating sanctions by: [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. (Code Civ. Pro. § 2023.030(d)).  Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including terminating sanctions. (See Code Civ. Pro. § 2031.300(c)(Regarding terminating sanctions in the case of motions for demands for inspection); Code Civ. Pro. § 2025.450(h)(Regarding terminating sanctions where a deponent fails to appear or produce documents without valid objection).)

However, ordering terminating sanctions is not an action this Court can undertake without careful consideration; and only in circumstances where a violation is willful, preceded by a history of discovery abuse and the evidence shows that a less severe sanction would not produce compliance with the discovery rules.  (See Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516 (Granting terminating sanctions where a lawyer failed to respond to numerous special interrogatories and demands for production of documents, failed to respond to motion to compel discovery, failed to obey a court order to provide discovery, and failed to respond to demands for production even after filing motion for relief from default.); Doppes 174 Cal. App. 4th at 992 (Holding that trial court abused its discretion in failing to grant terminating sanctions against defendant who engaged in persistent and serious misuse of the discovery process); Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279 (Holding that terminating sanctions were not an abuse of discretion where appellant repeatedly failed to answer discovery requests despite numerous extensions sought and granted, the issuance of court orders and monetary sanctions); Sec. Pac. Nat. Bank v. Bradley (1992) 4 Cal. App. 4th 89 (Overturning trial court on error for granting terminating sanctions where defendant’s failure to file separate responsive statement was not willful)).  Where these conditions are met, the Court is justified in ordering terminating sanctions.  (See Id.)

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

In the discovery context, willfulness may be found where the responding party “understood his [or her] obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.)  “A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at 787-788 (citing Snyder v. Sup. Ct. (1970) 9 Cal.App.3d 579, 587.)

Here, Defendant has shown ample evidence of misuse of the discovery process.  Responses to Defendant’s discovery requests are now one year overdue.  Plaintiff has been in violation of this Court’s order to attend a deposition, produce documents and tangible things, and pay monetary sanctions for seven months.  Plaintiff has also failed to communicate with Defendant.  When discovery abuse rises to this level, it is difficult for an opposing party to conduct its case.

Monetary sanctions have not been sufficient.  Evidentiary sanctions would not be effective in this case, where the withholding party is not the party that wishes to use the evidence in question.  (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 929)

Therefore, Defendant’s Motion for Terminating Sanctions against Plaintiff is GRANTED.

IV.     Order

Therefore, Defendant’s Motion for Terminating Sanctions against Plaintiff is GRANTED.  The Plaintiff’s Complaint is ordered STRICKEN and the action is DISMISSED.

 

 

 

________________­­­____________

DATED:

_________________________­­­_____________   

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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