2017-00224647-CU-PA

Frederick Michael Laudadio vs. Diego Moya Fernandez

Nature of Proceeding: Motion to Dismiss

Filed By: Alley, Ryan W.

Defendant Edward Thomas Condon’s (“Defendant”) motion to dismiss plaintiff Frederick Michael Laudadio’s (“Plaintiff”) action for failure to comply with a court order compelling discovery responses and continuing abuse of the discovery process is UNOPPOSED, but is DENIED.

Plaintiff was previously represented by counsel, but Plaintiff’s counsel’s motion to withdraw was granted on May 10, 2018. The Court does not have any record that Plaintiff has obtained new counsel. Accordingly, Plaintiff is currently proceeding in pro per.

Defendant served discovery on Plaintiff’s former counsel on February 20, 2018. After multiple extensions were granted, responses were due April 17, 2018. After having received no response, Defendant’s counsel contacted Plaintiff’s counsel, who informed him that he had a pending motion to be relieved as counsel. As noted above, this motion was granted on May 10, 2018.

Defendant then wrote a meet and confer letter to Plaintiff and enclosed copies of the outstanding discovery. Defendant requested verified responses, without objections, no later than May 31, 2018.

After having received no responses or correspondence from Plaintiff, Defendant filed a motion to compel. On August 20, 2018, this Court granted Defendant’s unopposed motion to compel Plaintiff to provide verified responses, without objections, to Defendant’s discovery. Plaintiff was ordered to provide responses no later than August 31, 2018. (ROA 26.) Plaintiff has not served verified responses. (Alley Decl. ¶ 15.)

Defendant also noticed Plaintiff’s deposition for July 24, 2018, and Plaintiff failed to object or appear. Defendant made a record of nonappearance.

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. While Plaintiff has failed to comply with the Court’s discovery Order, it has only been approximately two months since Plaintiff’s verified responses were due. Further, Plaintiff only failed to appear once for his deposition and no motion to compel his attendance was filed. In these circumstances, terminating sanctions are not yet 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.

Plaintiff, however, is also hereby ordered to serve verified responses, without objections, to Defendant’s request for production of documents, set one, by

November 8, 2018. Failure to obey the Court’s order may lead to the imposition

of sanctions, including terminating sanctions.

There was no request for monetary sanctions, hence, none are awarded.

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