Case Number: 18STCP03531 Hearing Date: September 23, 2019 Dept: 32

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Petitioner,

v.

JEHAN Z. MIR,

Respondent.

Case No.: 18STCP03531

Hearing Date: September 23, 2019

[TENTATIVE] order RE:

(1) Respondent’s MOTION to SET ASIDE COURT ORDER requiring respondent to appear at deposition

(2) Petitioner’s motion for terminating sanctions

BACKGROUND

On December 31, 2018, Petitioner State Farm Mutual Automobile Insurance Company (“Petitioner”) filed a Petition to Open Unlimited Civil Court File to Establish Jurisdiction over Uninsured/Underinsured Motorist Arbitration Matters pursuant to Insurance Code Section 11580.2(f) (“Petition”) against Respondent Jehan Zeb Mir (“Respondent”). Petitioner alleges that it issued an automobile insurance policy to Respondent which included uninsured/underinsured motorist coverage. Petitioner alleges that Respondent made a claim for uninsured/underinsured motorist arbitration arising out of a motor vehicle accident on December 5, 2010 pursuant to the terms of the automobile insurance policy. Petitioner alleges that it served Respondent with deposition notices in order to investigate and evaluate Respondent’s claim, but Respondent failed to appear for deposition. Petitioner initiated this civil action in order to compel Respondent to comply with discovery.

On March 18, 2019, the Court granted Petitioner’s motion to compel Respondent to appear for and testify at deposition on April 4, 2019 at 12:45 PM at Mark R. Weiner & Associates’ offices. The Court also awarded Petitioner monetary sanctions in the amount of $581.

Respondent did not appear at the deposition. Instead, on April 5, 2019, Respondent filed a motion to set aside the Court’s March 18 ruling. On July 3, 2019, the Court denied Respondent’s motion. The Court ordered Respondent to appear for deposition on August 13, 2019 at 1:30 p.m. at Mark R. Weiner & Associates’ offices.

On August 12, 2019, one day before the court-ordered deposition, Respondent filed the instant motion.

MOTION TO SET ASIDE COURT ORDER

Respondent moves for an order to set aside and vacate the Court’s July 3 order requiring him to attend and testify at deposition. Respondent advances two arguments for setting aside this order.

First, Respondent argues that the Court lacked subject matter jurisdiction to issue this order because he commenced uninsured motorist arbitration over five years ago. Respondent relies on Insurance Code section 11580.2(i)(2)(A): “Any arbitration instituted pursuant to this section shall be concluded … [w]ithin five years from the institution of the arbitration proceeding.” Respondent asserts, but submits no evidence to prove, that he initiated arbitration against Petitioner by mailing Petitioner a request for arbitration on July 1, 2014.

Respondent’s argument is unavailing. Expiration of the statute of limitations is subject to expressly enumerated excuses (Ins. Code § 11580.2(i)(3)) and the insurer’s written notification to the insured of the statue of limitations’ impending expiration (Ins. Code § 11580.2(k)). Petitioner has shown that it has not served this written notification on Respondent. (Rosenwasser Decl. ¶ 26.) Further, service of the arbitration request is subject to CCP section 1013. That statute extends “any period of notice and any right or duty to do any act … [by] five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California.” Assuming arguendo that Respondent mail-served the arbitration request on July 1, 2014, then the earliest that the statute of limitations could expire is July 6, 2019, three days after the Court’s July 3 ruling.[1]

Second, Respondent argues that the Court’s July 3 order is void for lack of personal jurisdiction because Petitioner never served him with Summons.

Respondent’s argument is implicitly foreclosed by the Court’s July 3 order. There, the Court cited to Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913 for the proposition that Respondent’s demand for an uninsured motorist arbitration proceeding subjected him to the Court’s personal jurisdiction in this special proceeding. (See also Haning, et al., Cal. Prac. Guide: Personal Injury, Ch. 7-J, ¶ 7:304.7 (citing to Miranda for the proposition that a “party seeking court assistance in connection with a discovery dispute [in an uninsured motorist arbitration] need not file and serve on the other party a formal complaint” and may serve papers by mail).) Thus, service of Summons is unnecessary for the Court to obtain personal jurisdiction in this matter. Respondent’s argument is also foreclosed as a practical matter because this is not an ordinary civil action. Respondent cites to the Civil Case Cover Sheet Addendum that expressly note that “[i]f filing a Complaint, a completed Summons form for issuance by the Clerk” must be filed. (Emphasis added.) Petitioner filed a petition, not a complaint, in connection with the parties’ uninsured motorist arbitration proceeding.

Respondent’s motion to set aside the Court’s July 3 order is DENIED.

MOTION FOR TERMINATING SANCTIONS

A. Legal Standard

Courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions against parties engaging in misuse of the discovery process after giving the parties proper notice and the opportunity to be heard. (CCP § 2023.030.) The Discovery Act defines “misuse of discovery” as including (1) a failure to respond or to submit to an authorized method of discovery (CCP § 2023.010(d)) and (2) disobedience to a court order to provide discovery (CCP § 2023.010(g)).

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. 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. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Wilson v. Jefferson (1985) 163 Cal. App. 3d 952, 959.)

In determining whether sanctions should be imposed, courts consider the totality of the circumstances, including 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.” (Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.) Generally, two facts are prerequisite to the imposition of nonmonetary sanctions: (1) absent unusual circumstances, there must be a failure to comply with a court order and (2) the failure must be willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

B. Analysis

Petitioner moves for terminating sanctions against Respondent on the grounds that Respondent has willfully refused to appear and testify at his court-ordered deposition and pay court-ordered sanctions in violation of multiple court orders.

Petitioner presents a declaration from its counsel, Lisa G. Rosenwasser (“Rosenwasser”). Rosenwasser declares that, on July 14, 2017, Petitioner noticed the deposition of Respondent for August 21, 2017. (Rosenwasser Decl. ¶ 4, Ex. A.) On August 20, 2017, Respondent advised Petitioner that he would not appear for deposition because he was busy with personal matters. (Rosenwasser Decl. ¶ 5.) In efforts to secure Respondent’s deposition, Rosenwasser contacted Respondent on numerous occasions in September, October, November, and December 2017. (Rosenwasser Decl. ¶ 6.) These efforts met with no success. (Ibid.) Respondent informed Petitioner that he should “just pay and move on” because Petitioner had deposed him in another civil case. (Rosenwasser Decl. ¶ 8, Ex. C.)

On September 11, 2018, Petitioner served Respondent with a Notice of Continuance of Taking Deposition for December 4, 2018 as Respondent indicated availability at that time. (Rosenwasser Decl. ¶ 10, Ex. E.) Respondent objected to the notice. (Rosenwasser Decl. ¶ 11, Ex. F.) Respondent refused to withdraw his objections forcing Petitioner to file a motion to compel. (Rosenwasser Decl. ¶ 13.) On March 18, 2019, the Court granted Petitioner’s motion, ordering Respondent to appear for deposition at Rosenwasser’s offices on April 4, 2019. (Ibid., Ex. H.) The Court also ordered Respondent to pay Petitioner monetary sanctions within 30 days of notice of the order. (Ibid.)

On April 3, 2019, one day prior to the court-ordered deposition, Respondent served Petitioner with a motion to set aside and vacate the March 18 court order. (Rosenwasser Decl. ¶ 15.) In the motion, Respondent argued that the Court lacked jurisdiction to issue the March 18 court order. On July 3, 2019, the Court denied Respondent’s motion. (Rosenwasser Decl. ¶ 17, Ex. J.) The Court rescheduled the deposition of Respondent for August 13, 2019 and again ordered Respondent to appear. (Rosenwasser Decl. Ex. J.)

On August 8, 2019, Respondent sent Rosenwasser a letter, requesting that the August 13 court-ordered deposition be taken off-calendar. (Rosenwasser Decl. ¶ 19, Ex. L.) Respondent threatened to file a second motion to set aside and vacate if Petitioner did not comply. (Ibid.) The parties met and conferred on Respondent’s concerns. (Rosenwasser Decl. ¶¶ 21-23, Ex. M.) On August 10, 2019, Respondent informed Petitioner that he would not appear for deposition and would instead file the instant motion. (Rosenwasser Decl. ¶ 23.)

To date, Respondent has not paid the court-ordered monetary sanctions. (Rosenwasser Decl. ¶ 24.)

Petitioner has established Respondent’s willful failure to comply with two judicial discovery orders and complete abdication of his discovery obligations in this matter. This behavior warrants nonmonetary sanctions. Further, the Court has heard three motions on the issue of Respondent’s deposition, ordered Respondent to appear for deposition twice, and repeatedly articulated its stance to Respondent that his jurisdictional concerns are meritless and that he must appear for deposition. At this juncture, the Court is convinced that any form of sanctions short of terminating sanctions would be insufficient.

The Court orders Respondent to appear for deposition within five days of the hearing on this motion. If Respondent refuses or fails to do so, this motion for terminating sanctions will be granted.

[1] Beyond this, the Court notes that this argument is ostensibly counter to Respondent’s own interests. If the statute of limitations has expired, then the arbitrator must dismiss the uninsured arbitration proceeding that Respondent commenced.