Case Number: BC611583 Hearing Date: October 17, 2018 Dept: 4

Motion for Terminating and Monetary Sanctions

The court considered the motion.

BACKGROUND

On February 24, 2016, plaintiff Paul Woods filed a complaint against defendants Nehman McAdams and Anna McAdams for negligence and premises liability based on a slip and fall on stairs.

On December 1, 2017, the court granted defendants’ motion to compel plaintiff’s depositions.

On January 18, 2018, the court granted plaintiff’s counsel’s motion to be relieved as counsel.

Trial is set for March 26, 2019.

DISCUSSION

Defendants request that the court impose terminating sanctions against plaintiff for his failure to comply with the court’s order dated December 1, 2017, ordering him to appear for his deposition. Defendants also request $1,160 in monetary sanctions.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP § 2025.450(h) (depositions); § 2030.290(c) (interrogatories); § 2031.300(c) (demands for production of documents). CCP § 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP § 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [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.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

On December 1, 2017, the court ordered plaintiff Paul Woods to appear for his deposition on December 22 or 29, 2017 and to pay $560 in monetary sanctions within 30 days. He failed to appear. On June 28, 2018, defendants served upon plaintiff a notice of the court-ordered deposition, scheduling the deposition for July 11, 2018. On July 9, 2018, plaintiff contacted defense counsel’s office to request a continuance. Because plaintiff’s deposition had been scheduled six times since October 26, 2016, defense counsel told plaintiff that if he did not appear on July 11 then defendants would file a motion for terminating sanctions. He failed to appear.

The court finds that plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the court’s December 1, 2017 by failing to appear for his deposition. CCP §§ 2023.010(g), 2023.030. The court thus finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against plaintiff pursuant to CCP § 2023.030(d). The court denies defendants’ request for monetary sanctions because terminating sanctions are adequate.

The motion is GRANTED.

The court orders that plaintiff Paul Woods’ complaint against defendants is dismissed. CCP § 2023.030(d)(3).

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 17, 2018

_____________________________

Christopher K. Lui

Judge of the Superior Court