Case Name: Raymond So et al v SJ Ranch Holding, LLC et al
Case No. 114CV258609

Plaintiffs have filed this Motion for Terminating Sanctions, Evidentiary Sanctions, and for Monetary Sanctions or, in the Alternative, to Compel Kristy Park to Answer Certain Questions. Defendant, Kristy. Park, filed no formal opposition to the Plaintiffs’ Motion. However, her former counsel has filed objections.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).
All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.” Rule of Court 3.1345(d).
I. Statement of Facts.
Defendant SJ Ranch Golf Holding, LLC (“Defendant Ranch”) owns a golf course and clubhouse located in San Jose, California. Defendant Kristy Park (Ms. Park) was the General Manager of Defendant Ranch during the period of time relevant to this case. Plaintiffs Raymond So, Alvin Leung, Eric Fruen, Timothy Pires, and Vanesa Arellano are five former employees of Defendant Ranch. (Defendant’s Opposition, p. 2-3).
The case arises out of a dispute regarding the payment of tips to Plaintiffs from large events. Defendant Ranch charged clients an additional 20% of the cost of those events. Defendant Ranch claims this charge was not a gratuity, advised customers the charge was not a gratuity, and advised customers to tip the servers. Plaintiffs claim Ms. Park personally told customers the 20% charge was a gratuity and was split between the servers, and instructed event coordinators to tell customers the same. (Id.)
II. Discovery Dispute.
Ms. Park was deposed by Plaintiffs on September 10, 2014. During that deposition, counsel had a disagreement as to questions regarding Ms. Park’s termination from Defendant Ranch. Aguiar Decl. ¶1.
On October 9, 2014, Plaintiffs filed a motion to compel further answers, and Ms. Park agreed to a continuance of the deposition on December 12, 2014, after previously scheduled mediation. (Aguiar Decl. ¶2, Skogen Decl. ¶9.)

The parties attended an unsuccessful mediation on December 11, 2014. (Aguiar Decl. ¶5, Skogen Decl. ¶10).
On December 12, 2014, Ms. Park did not appear for the continued deposition. Ms. Park claims she intended to appear but confused the dates. (Aguiar Decl. ¶6-7, Skogen Decl. ¶11-12.)
On December 19, 2014, counsel for Defendants filed a motion to be relieved of representing Ms. Park, and the motion was granted. (Aguiar Decl. ¶8, Skogen Decl. ¶12, Defendant’s Ex. A.)
On January 21, 2015, Plaintiffs filed this motion for terminating sanctions, evidentiary sanctions, and/or monetary sanctions or, in the alternative, to compel Kristy Park to answer certain questions and request for monetary sanctions. (Plaintiff’s Memo of Points and Authorities.)
Defendant Ranch filed an opposition on February 2,2015. (Defendant’s Opposition.)
III. Analysis.
A. Meet and Confer
A code-compliant attempt to meet and confer is an explicit prerequisite when attempting to compel attendance/compliance with deposition (Code Civ. Proc. § 2025.450(b)). Under California Code of Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The failure to attempt to meet and confer where required is an explicitly named misuse of the discovery process. (See Code Civ. Pro. § 2023.010(i)).
Here, the Court finds that the Plaintiff has sufficiently met and conferred. (Plaint. Ex. B).
B. Plaintiff’s Motion to Compel Ms. Park’s Attendance at Deposition
Pursuant to Code of Civil Procedure section 2025.450(a): “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”
Here, where this motion to compel is unopposed and Ms. Parks failed to appear for a properly noticed deposition, this motion is appropriate.
According, Plaintiff’s Motion to Compel Ms. Park’s Attendance at Deposition is GRANTED. Defendant Ms. Park shall provide Plaintiff with firm dates for her availability for one-hour continued deposition within 20 court days of this order. Defendant Ms. Park shall make herself available for said one-hour continued deposition within 30 court days of this order.
C. Non-Monetary Sanctions
Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102). Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293). In exercising this discretion, the court of appeal has indicated that the trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992). There are some cases which suggest that non-monetary sanctions may be granted absent an existing order. (See New Albertsons, Inc. v. Superior Court, (2008) 168 Cal. App. 4th 1403, 1424, 86 Cal. Rptr. 3d 457, 473 (citing (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 9 Cal.Rptr.2d 396; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 51 Cal.Rptr.2d 311 ; Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 59 Cal.Rptr.2d 919; see Williams v. Russ (2008) 167 Cal.App.4th 1215, 84 Cal.Rptr.3d 13 ; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 45 Cal.Rptr.3d 265 ; see also Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 26 Cal.Rptr.3d 831.)) However, all of these cases involve numerous, egregious ongoing discovery abuses. (See Id.) What’s more, each case included articulable evidence on record that such egregious conduct was willful. (See Id.) The New Albertsons Court stated that this articulable evidence of willful conduct was necessary in making a determination that non-monetary sanctions are appropriate without a prior order which the sanctioned party failed to obey. (See New Albertsons, Inc. v. Superior Court (2008) 168 Cal. App. 4th 1403, 1428, 86 Cal. Rptr. 3d 457, 476-77).

Additionally, the trial court should “attempt to tailor the sanction to the harm caused by the withheld discovery.” Id. The Court’s discretionary authority in determining the appropriate sanction is limited by the principle that discovery sanctions are meant to be remedial rather than punitive. (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381). Put another way, the discretionary imposition of a sanction is proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought, but not when it places the prevailing party in a better position than if discovery had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958).
Finally, non-monetary sanctions are imposed upon an incremental bases depending upon the severity of the violation. (See Doppes 174 Cal.App.4th at 992). “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.” Id. (internal quotation marks and citations omitted).
In the discovery context, willfulness may be found where the responding party “understood his [or her] obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787). “A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at 787-788 (citing Snyder v. Sup. Ct., 9 Cal.App.3d 579, 587 (1970)).
1. Evidentiary Sanctions
Where evidentiary sanctions are appropriate under the two-part general standard for non-monetary sanctions explained above, the Court may prohibit a party from introducing designated matters in evidence. (See Code Civ. Pro. § 2023.030(c)). Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including evidentiary sanctions. (See Code Civ. Pro. § 2031.320(c)(Regarding evidentiary sanctions where a party fails to permit inspection despite previous agreement); Code Civ. Pro. § 2025.450(h)(Regarding evidentiary sanctions where a deponent fails to produce document without valid objection); Code Civ. Pro. § 2025.480(k)(Regarding evidentiary sanctions where deponent fails to answer any question or produce any document. The sanctions must be proportionate to the conduct that is being sanctioned. (See McGinty v. Superior Court (6th Dist. 1994) 26 Cal. App. 4th 204, 211). Strong evidence of the appropriateness of evidentiary sanctions can include: a long history of abuse of process by the non-moving party, continuous willful obstructive conduct by the non-moving party, or egregious interference with the opposing party’s ability to make a case. (See Id. At 212). The Court should consider the impact of excluding the evidence at trial and the extent to which it prejudices the sanctioned party in determining appropriateness. (See Id. at 212-213). However, the fact that a sanction is seriously detrimental to the sanctioned party does not itself make an evidentiary sanction inappropriate. (See Pate v. Channel Lumber Co. (1997) 51 Cal. App. 4th 1447, 1455). This is because the detrimental effects of an evidentiary sanction are incidental to the proper objective of appropriate evidentiary sanctions. (See Id.).
Here, where there is no pre-existing order and much less substantial sanctions available, the failure of Ms. Park to attend one deposition does not rise to the level of extreme discovery abuse required for terminating sanction without such an order. Even were there an order here, this Court is not certain that this single failure would rise to a level of abuse sufficient for this ultimate sanction. Plaintiff has also provided insufficient evidence to show that Defense intended for Ms. Park to not show up for her deposition. Thus, it is unlikely that the acts here were willful.
Accordingly, Plaintiff’s motion for evidentiary sanctions is DENIED.

2. Terminating Sanctions
Code of Civil Procedure, § 2023.030(d) states that: “the Court may impose terminating sanctions by: [an] order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process… [an] order staying further proceedings by that party until an order for discovery is obeyed…[an] order dismissing the action, or any part of the action, of that party…[or an] order rendering a judgment by default against that party. (Code Civ. Pro. § 2023.030(d)). Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including terminating sanctions. (See Code Civ. Pro. § 2031.320(c)(Regarding terminating sanctions where a party fails to permit inspection despite previous agreement); Code Civ. Pro. § 2025.450(h)(Regarding terminating sanctions where a deponent fails to produce document without valid objection); Code Civ. Pro. § 2025.480(k)(Regarding terminating sanctions where deponent fails to answer any question or produce any document).
However, ordering terminating sanctions is not an action this Court can undertake without careful consideration; and only in circumstances where a violation is willful, preceded by a history of abuse and the evidence shows that a less severe sanction would not produce compliance with the discovery rules. (See Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516 (Granting terminating sanctions where a lawyer failed to respond to numerous special interrogatories and demands for production of documents, failed to respond to motion to compel discovery, failed to obey a court order to provide discovery, and failed to respond to demands for production even after filing motion for relief from default.); Doppes 174 Cal. App. 4th at 992 (Holding that trial court abused its discretion in failing to grant terminating sanctions against defendant who engaged in persistent and serious misuse of the discovery process); Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279 (Holding that terminating sanctions were not an abuse of discretion where appellant repeatedly failed to answer discovery requests despite numerous extensions sought and granted, the issuance of court orders and monetary sanctions); Sec. Pac. Nat. Bank v. Bradley (1992) 4 Cal. App. 4th 89 (Overturning trial court on error for granting terminating sanctions where defendant’s failure to file separate responsive statement was not willful)). Where these conditions are met, the Court is justified in ordering terminating sanctions. (See Id).
Here, where there is no pre-existing order and far less substantial sanctions available, the failure of Ms. Park to attend one deposition does not rise to the level of extreme discovery abuse required for terminating sanction without such an order. Even were there an order here, this Court is not certain that this single failure would rise to a level of abuse sufficient for this ultimate sanction. Plaintiff has also provided insufficient evidence to show that Defense intended for Ms. Park to not show up for her deposition. Thus, it is unlikely that the acts here were willful. Plaintiff is advised to, in the future, make at least one attempt at remedying their discovery issues through available avenues—such as a Motion to Compel.
Accordingly, Plaintiff’s request for terminating sanctions is DENIED.
C. Monetary Sanctions
Plaintiff makes a request for monetary sanctions in their motion in the amount of $12,724.20. The request is code-compliant.
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (See Rule of Court 2.30). The party’s motion must also state the applicable rule that has been violated. (Id.).
In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49). Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551).
Plaintiff cites CCP § 2025.450(g) in support of their request for sanctions. This is appropriate authority for the grant of monetary sanctions where a party fails to attend a properly noticed deposition. However, the amount of monetary sanctions requested is not reasonable. The 6 hours of waiting time and expenses for accommodations will not be granted. Plaintiff was already in town for a mediation. (Aguiar Decl. ¶ 4; Skogen Decl ¶ 9-11). Thus, all travel expenses are unreasonable except for the 3 hours spent traveling to and from Ms. Park’s deposition. What’s more, given that this motion is primarily an unfounded request for terminating and evidentiary sanctions, this Court will treat the reasonable time for preparing the motion as the reasonable time for preparing a discovery motion as standard as a Motion to Compel—1 hour for each motion and 1 hour for both the separate statements. Thus, the appropriate amount for monetary sanctions is $2,995.20.
Ms. Parks has provided no justification for her failure to attend this deposition beyond the fact that she mixed up the dates. This is not substantial justification sufficient to relieve her from monetary sanctions.
Accordingly, Plaintiff’s request for monetary sanctions in the amount $2,995.20 is GRANTED.

Plaintiff’s Motion to Compel Ms. Park’s Attendance at Deposition is GRANTED. Defendant Ms. Park shall provide Plaintiff with firm dates for her availability for one-hour continued deposition within 20 court days of this order. Defendant Ms. Park shall make herself available for said one-hour continued deposition within 30 court days of this order.
Plaintiff’s motion for evidentiary sanctions is DENIED.
Plaintiff’s motion for terminating sanctions is DENIED.
Plaintiff’s request for monetary sanctions is GRANTED in the amount of $2,995.20.