Case Number: BC652003 Hearing Date: February 01, 2019 Dept: 4A

Motion for Terminating Sanctions or, in the alternative, to Compel Plaintiff’s Deposition and Responses, and Motion to Continue Trial

The court considered the moving papers, opposition, and reply papers.

On February 27, 2017, Sanjuana Santoyo (“plaintiff”) filed a complaint against defendants Jesus Gaytan and R&R Medina’s Transportation, Inc. for motor vehicle negligence based on an accident that occurred on February 27, 2015.

Trial is set for February 25, 2019.

Defendant Jesus Gaytan (“defendant”) requests that the court impose a terminating sanction against plaintiff for plaintiff’s failure to appear at three noticed depositions.

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, supra, 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, supra, 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, fn. 4 [terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

The court finds that imposition of terminating sanctions would be harsh under the circumstances and is unwarranted. Plaintiff has not violated a court order and no other sanctions have been awarded to date.

Defendant also requests, in the alternative, that the court compel the deposition of plaintiff.

CCP §2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

CCP § 2025.450(b) provides, “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

On September 11, 2018, defendant served a first notice of deposition of plaintiff set for October 2, 2018. Plaintiff did not appear. On October 16, 2018, after the parties agreed on a date, defendant served a second notice of taking deposition of plaintiff set for October 30, 2018. Plaintiff’s counsel appeared at the deposition, but plaintiff did not appear. After meet and confer attempts to set a third deposition date failed, defendant served a third notice of deposition of plaintiff set for January 3, 2019. Neither plaintiff nor her attorney appeared at the deposition.

In opposition, plaintiff contends that she was unable to appear at the first and third depositions due to child care arrangements and her employment as a property manager. Defense counsel was informed of her unavailability on certain dates yet set depositions on those dates.

The court finds that defendant properly served a deposition notice, and plaintiff failed to appear without serving a valid objection.

Therefore, the motion to compel plaintiff’s deposition is GRANTED.

If a motion to compel deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.450(g)(1).)

Defendant’s notice of motion properly notices the request for sanctions against plaintiff and plaintiff’s attorney of record as required by CCP § 2023.040.

The court finds that sanctions are warranted pursuant to CCP § 2025.450(g)(1). Defense counsel made reasonable attempts to take plaintiff’s deposition. Plaintiff did not appear to her depositions. Although plaintiff provides excuses for the first and third depositions, there is no explanation for missing the second deposition. Additionally, plaintiff did not inform defense counsel that she would not be able to appear at the first and third depositions. Accordingly, there is no basis for a finding that plaintiff acted with substantial justification, and it would not be unjust to award sanctions against a party whose failure to appear for deposition necessitates motion practice. The court finds that $2,585.90 ($250/hr. x 2.5 hrs., plus $120 in filing fees, plus $989.90 in court reporter fees, plus $851 in videographer fees) is a reasonable amount to be imposed against plaintiff.

Defendant also requests that the court continue trial for 60-90 days due to defendant’s inability to conduct plaintiff’s deposition. The court notes that defendant’s moving papers to not request that the discovery cut-off and motion cut-off dates be based on the new trial date. Plaintiff has not opposed this part of the motion.

The motion is GRANTED because defendant has shown good cause. (CRC Rule 3.1332.)

The court notes that moving party paid only one filing fee and improperly combined two motions into one.

The court ORDERS:

Defendant Jesus Gaytan is ordered to pay additional filing fees in the amount of $60 within five days.

Plaintiff is ordered to appear for her deposition within 45 days, on a mutually agreeable date and time.

Plaintiff and Plaintiff’s counsel are ordered to pay to defendant $2,585.90 in monetary sanctions within 30 days.

The court orders that trial is continued from February 25, 2019 to April 26, 2019, at 8:30 a.m., in Department 4A. The Final Status Conference is continued from February 11, 2019 to April 12, 2019, at 10:00 a.m., in Department 4A.

Moving defendant is ordered to give notice of this ruling.