Case Number: BC643080 Hearing Date: May 23, 2018 Dept: O

BC643080

S.B. v. FICHMAN ET AL.

Plaintiff’s Motion for Issue, Evidence or Terminating Sanctions is DENIED. Plaintff’s motion for court sanctions per CCP §177.5 is DENIED and sanctions pursuant to CCP §2025.450 is GRANTED in the amount of $2500.

ANALYSIS: On 2/23/18, the Court ordered that Defendant Fichman appear for deposition within 30 days. The deadline was therefore 2/23/18. On 2/23/18, after the hearing, Plaintiff’s counsel issued a deposition subpoena noticing the deposition for 3/12/18. See Decl. of M. Le-Clair-Gibson, ¶6. There was no consultation with Defense counsel prior to setting the 3/12/18 date. Thereafter, Defense counsel’s office asked to reschedule the deposition for 3/20/18 and Plaintiff’s counsel accepted that date. Id. at ¶7.

On 3/13/18, Defense counsel contacted Plaintiff’s counsel to reschedule after discovery that defense counsel had a conflict. Defense counsel’s reception scheduled the 3/20/18 without realizing that defense counsel was unavailable on that date. Defense counsel offered to advance to deposition to 3/19/18, schedule the depo for the afternoon of 3/20/18 or schedule the depo for 11am on 3/21/18. See Decl. of J. Oberto, ¶¶7-8; Decl. of C. Endelicato, ¶5. Plaintiff refused all of these alternatives. In response, Defense counsel offered additional dates of 4/6/18 and 4/13/18. Id. at ¶10. These alternatives were refused.

Discovery sanctions are not intended to punish but to accomplish discovery. See Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613. CCP §2023.010 does not require that any heightened showing be made in connection with a request for terminating sanctions. The Court is also not required to make any findings or detail with particularity the basis for its decision to impose sanctions. See Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261. The imposition of sanctions detailed in CCP §2023.030(b) for disobedience to Court’s orders lies entirely within the court’s sound discretion and is only subject to reversal for manifest abuse exceeding the bounds of reason. See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244. Thus, in reviewing a trial court’s imposition of terminating sanctions, the question is not whether lesser sanctions could have been imposed, but whether imposition of terminating sanctions constitutes an abuse of discretion. See Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620 (affirming terminating sanctions where defendant repeatedly failed to provide substantive discovery responses and trial date was only two months from hearing on motion for terminating sanctions).

“While there is no question but that a trial court, under appropriate circumstances, has the power to sanction a party who refuses to provide discovery to which his adversary is entitled, the sanction chosen must not be the result of an arbitrary selection. It should not deprive a party of all right to defend an action if the discriminating imposition of a lesser sanction will serve to protect the legitimate interests of the party harmed by the failure to provide discovery.” See Thomas v. Luong (1986) 187 Cal.App.3d 76, 81–82; see also Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669 (incarcerated, indigent, pro per plaintiff’s delay in serving responses insufficient to justify imposition of terminating sanctions where no prejudice demonstrated).

“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.” Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280 (terminating sanctions proper despite service of verified responses after their imposition where defendant repeatedly failed to respond to discovery or comply with court discovery orders). Where there is a pattern of discovery abuse, the trial court is “not required to allow this pattern of abuse to continue ad infinitum.” Id. at 280. Imposition of terminating sanctions is appropriate where imposition of a lesser sanction would permit the non-compliant party to benefit from their stalling tactics. Collisson & Kaplan, supra, 21 Cal.App.4th at 1620.

Traditionally, a court’s inherent power to dismiss or terminate an action has been recognized in cases of delay in prosecution or instances of sham, fraudulent or vexatious lawsuits. Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758. However, case law has expanded such power to cases of extreme litigation abuse. See CCP §§581(m) and 583.150; Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799 (acknowledging inherent power to impose terminating sanctions as referenced in CCP §§581 and 583.150). “[W]e conclude that California trial courts have inherent power to issue a terminating sanction when a plaintiff’s misconduct is deliberate, is egregious, and makes lesser sanctions inadequate to ensure a fair trial.” Stephen Slesinger, Inc., supra, 155 Cal.App.4th at 758. Exercise of this power need not be preceded by violation of a court order and is reviewed for abuse of discretion. Id. at 763 and 765.

Based on the undisputed recitation of facts, there is no basis to impose sanction based on Defendant’s willful disobedience of the Court’s 2/23/18 order. Defense and Plaintiff’s counsel testify that the initial 3/12/18 deposition date was set unilaterally. Unsurprisingly, because the date was scheduled unilaterally, Defense counsel was unavailable on that date. The failure of Defendant to propose a proper date (3/20/18) in the first instance does not establish a willful failure to disobey or discovery abuse. Defendant establishes it was the result of mistake and inadvertence and Defendant also establishes that it attempted in good faith the reschedule before expiration of the 3/23/18 date. Plaintiff’s counsel fails to establish that the other dates proposed by Defendant were unworkable or unavailable.

As such, the inability to complete the deposition was due to scheduling conflicts exacerbated by Plaintiff’s refusal to consider other dates and times after Defense counsel reneged on the 3/20/18 date it proposed. Defense counsel informed Plaintiff of her unavailability for the 3/20/18 date by 3/13/18, leaving at least two additional weeks to schedule the deposition. These facts do not support a finding of willful failure to comply with the Court’s order or discovery abuse.

Terminating sanctions are extreme and certainly unjustified given that Defendant offered alternative dates. The issue and evidentiary sanctions are also extreme. Plaintiff seeks to impose issue and evidentiary sanctions that would deem admitted Defendant’s sexual assault against Plaintiff. The absence of willful disobedience of the 2/23/18 order warrants denial of these sanctions.

Sanctions are requested under CCP §177.5. “A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.” CCP §177.5. As discussed above, if there was a violation it was with good cause and substantial justification. Parties could not agree on a date.

However, there was a failure to comply attributable in part to the Defendant’s own mismanagement of its calendar. For this reason, Defendant and Defense counsel are ordered to pay sanctions in the amount of $2500 to Plaintiff for failing to appear at the 3/20/18 deposition. Plaintiff requests $6,269 in sanctions, which includes the time spent in connection with the 2/23/18 motion, as well as this motion for discovery sanctions. The requested sanctions are excessive based on the conduct, as well as excessive time for commuting to and from the courthouse.