2013-00153975-CU-PO

George Naylor vs. Supershuttle International, Inc.

Nature of Proceeding: Motion for Contempt

Filed By: Isbell, Allan L.

Defendants Supershuttle International, Inc. and Sacramento Transportation Systems (collectively, “Defendants”) motion for contempt, for terminating sanctions, and for monetary sanctions is unopposed and is ruled upon as follows.

This matter was continued by the Court on September 12, 2018. Since that time, plaintiff George Naylor’s counsel attempted to withdraw as counsel of record. On September 14, 2018, the Court denied the motion as there was no return receipt form the certified mail showing tha the client was served with the motion at the address listed on the proof of service. (ROA 106.) Thereafter, Plaintiff’s counsel filed a “Notice of Ruling” and served the notice on Plaintiff, indicating that the motion to withdraw had been granted. (ROA 107.) Plaintiff’s counsel is hereby ordered to file an Amended

Notice of Ruling and serve the same on Plaintiff, indicating that the motion to withdraw as counsel of record was denied.

Defendants seek an order of contempt, terminating sanctions, and monetary sanctions based on plaintiff George Naylor’s failure to comply with this Court’s March 8, 2018, Order requiring Plaintiff to provide verified responses to Defendants’ Supplemental Interrogatories and Supplemental Requests for Production of Documents (Set One), without objections and produce all responsive documents in his possession, custody, or control no later than March 19, 2018. (ROA 74.) Plaintiff did not oppose the underlying motion to compel and Plaintiff has failed to comply with the Order. (Declaration of Allan L. Isbell ¶¶ 4-9.)

First, to the extent that the motion seeks an order of contempt it is denied. Contempt

cannot simply be requested by way of a motion. A court cannot, as Defendants seek to have this court do here, punish a contempt committed outside its presence without a full hearing at which the alleged contemptor appears through personal service of an order to show cause. (CCP § 1212; Lund v. Superior Court (1964) 61 Cal.2d 698,

713.) Defendants must first seek and obtain an OSC in the event they wish to pursue contempt proceedings against Plaintiffs. Defendants’ motion for contempt, “served in the instant case was not such a process as is contemplated by the statutory provisions on contempt. Even if it had been properly served on the individual petitioners…, it would not have required any of them to appear in court. It would merely have furnished them with information that plaintiffs were about to request the court for certain orders to which they were not entitled under the circumstances.” (Lund, supra, at 713-714.)

Second, Defendants’ motion for terminating sanctions is denied. For misuse of the discovery process, including as is the case here, disobeying a court order to provide discovery, the Court may impose issue, evidence, terminating, or monetary sanctions. (See, e.g. Code of Civil Procedure §§ 2023.010(d) and (g), 2023.030(a-(d).) In ordering terminating sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal.App.4th 967, 991-992.)

The Court may impose sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the Court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “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. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 793.) In ordering terminating sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal. App. 4th 967, 991-992.)

Terminating sanctions are to be used sparingly because of the drastic effect of their application. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Accordingly, sanctions are generally imposed in an incremental approach, with terminating sanctions being a last resort. (Ibid.) However, even under the Civil Discovery Act’s incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows that lesser sanctions would be ineffective. (Lopez, at pp. 604-605; see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516-1519.)

Here, the Court finds there has not been a misuse of the discovery process warranting the severe imposition of terminating sanctions. Plaintiff has failed to comply with a single Court discovery Order. In these circumstances, terminating sanctions are not warranted as they would be disproportionate to the prejudice caused by the failure to timely respond in compliance with the Court’s order. Accordingly, the motion for terminating sanctions is DENIED.

The Court also declines Defendants’ request to impose evidentiary sanctions, which Defendants cursorily throw into their motion in a single sentence. (Memorandum at 5:8 -10.)

Defendants’ motion for monetary sanctions, however, is GRANTED against Plaintiff in

the amount of $645 (representing 3 hours of attorney time at the rate of $195/hour plus the $60 filing fee). Sanctions to be paid to defense counsel no later than November 17, 2018, and, if not paid by that date, Defendants may prepare for the Court’s signature a formal order granting the sanctions, which may then be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.