2016-00192076-CU-NP

SMUD vs. Elaine Martinez

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Colomba, Julio

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and the opposing party of the specific discovery requests that will be addressed at the hearing. The parties are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff SMUD’s motion for terminating, issue, evidentiary and monetary sanctions against defendant Raptis and to compel the latter’s further responses to special interrogatories and requests for production is GRANTED IN PART and DENIED IN PART, as follows.

To the extent this motion seeks issue and/or evidentiary sanctions, moving counsel failed to comply with CRC Rule 3.1345(a)(7).

Factual Background

The facts of this case are well known to the court as a result of the inordinate amount of recent law & motion activity. In this suit, plaintiff contends defendant Raptis’ “stole” plaintiff’s power to operate a marijuana grow house. Raptis was previously acting in pro per but now has an attorney. Trial was set to commence on 9/4/2018 but is now re -set for 1/8/2019.

Plaintiff seeks terminating sanctions on the grounds defendant Raptis has failed to comply with the court’s order compelling him to appear for deposition and submit to cross-examination. More specifically, while Raptis did appear on 8/3/2018 and answered some questions, plaintiff contends he did not participate in good faith and ultimately left the deposition, citing his mental illness which had been diagnosed just the day before. Plaintiff also seeks to compel Raptis’ further responses to certain special interrogatories and requests for production. Defendant Raptis opposes.

Analysis

The court declines to impose a terminating sanction against defendant Raptis here as such a sanction would result in an unjustified and disproportionate windfall to plaintiff.

The court also declines to impose the issue sanction requested by plaintiff (i.e., that Raptis be deemed to have admitted plaintiff’s earlier requests for admissions) since such relief is not warranted under the circumstances here and particularly in light of the court’s recent 8/10/2018 order granting Raptis relief from the deemed admissions.

On the other hand, the court will impose an evidentiary sanction against defendant Raptis which will preclude him from testifying at trial unless he appears for deposition and submits to questioning no later than 10/1/2018 (unless plaintiff agrees to a later date memorialized in writing). The court acknowledges Raptis’ own declaration in opposition which discusses his recent diagnoses of mental disorders and prescription for medications, although much of this declaration lacks foundation and is hearsay.

With respect to plaintiff’s special interrogatories to Raptis, the court declines to compel further responses to interrogatory Nos. 16-18 and 30 since Raptis’ initial responses to these questions appear to provide the information requested and the mere fact these responses may (1) be contradicted by other responses, (2) be “unbelievable” and/or

(3) constitute perjury does not, without more, justify an order compelling further responses. Plaintiff’s remedy for such inconsistencies and/or untruthful responses is to use them to impeach Raptis’ credibility at trial.

On the other hand, as Raptis has a duty under Code of Civil Procedure §2030.220(c) to make a good faith attempt to obtain the requested information by inquiry to others and has otherwise failed to object on the grounds that the information sought is equally available to plaintiff, the court will order further responses to interrogatory Nos. 23, 28 and 29.

Defendant Raptis shall also provide further responses to requests for production Nos. 12-28 since his initial responses, at a minimum, fail to comply with the requirements of Code of Civil Procedure §2031.230 (statement of inability to comply shall state whether documents never existed; have been lost, destroyed or stolen; or has never been in the responding party’s possession, custody or control, as well as the name

and address of the person(s) known or believed to have possession, custody or control).

Defendant Raptis shall provide verified further responses, without objections (which were waived long ago), to the above-cited special interrogatories and requests for production of documents no later than 9/21/2018 (unless plaintiff agrees to a later date memorialized in writing).

Plaintiff is awarded monetary sanctions against defendant Raptis in the amount of $1,155, representing seven (7) hours of attorney time. Sanctions to be paid by defendant Raptis no later than 9/21/2018 and if not paid by that date, plaintiff may prepare for the Court’s signature a formal order granting the sanctions, which may then be enforced as a separate judgment against defendant Raptis. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)