2014-00167487-CU-PA

Robyn Bleakley vs. Mark Crowe

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Harris, Mark R.

Defendant Mark Crowe’s motion for terminating sanctions, or in the alternative evidentiary sanctions is ruled upon as follows.

On November 21, 2017, this Court ordered Plaintiff Robyn Bleakley to appear for her deposition on December 1, 2017. Plaintiff did not appear for the Court ordered deposition. Defendant now seeks terminating sanctions, or in the alternative, evidentiary sanctions.

At the outset, the Court rejects Plaintiff’s contention that the motion must be denied because of a failure to meet and confer. There is no such requirement for a motion for terminating sanctions. Indeed, the issue concerns whether the Plaintiff complied with a Court order, for which no meet and confer effort is required.

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 sections 2023.010(d) and (g), 2023.030(a-(d). The Court has broad discretion in selecting the appropriate sanctions under the factual circumstances before it. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.)

Here, the Court finds that the drastic remedy of terminating sanctions and/or evidentiary sanctions are not appropriate at this time under the circumstances. The sanctions the court may impose are such as 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) The sanctions the court may impose are such as 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) The discovery sanction cannot put the propounding party in a better position than they would have been in if they had received the discovery. (Puritan Insurance Co. v Superior Court (1985) 171 Cal. App.3d 877, 884.)

Here, while it is true that Plaintiff did not appear for her Court ordered deposition, as

seen from Plaintiff’s counsel’s declaration, counsel has had difficulty contacting Plaintiff due to the fact that she is homeless and that this led to previous requests to reschedule the deposition and also in the failure to appear for the December 1, 2017 Court ordered deposition. (Shemtoub Decl.) Counsel declares that it is therefore difficult to make arrangements for Plaintiff to get presentable and obtain transportation to appear for a deposition without being notified well in advance. He was able to contact Plaintiff on December 12, 2017 and sent a meet and confer letter requesting several dates for Plaintiff’s deposition but did not receive a response.

The Court is aware of Defendant’s arguments that Plaintiff has continually cancelled her depositions. However, the Court finds that given the difficulties that Plaintiff’s counsel has had in communicating with Plaintiff as a result of her homelessness, and given the fact that Plaintiff has attempted to reschedule the Court ordered deposition, that the drastic remedies of terminating and/or evidentiary sanctions are not yet appropriate.

This is not to say that Plaintiff can continue to rely upon her homelessness as a means for not appearing for her deposition. Rather, Plaintiff shall appear for her deposition as previously ordered by the Court. The Court orders that the deposition shall occur no later than February 23, 2018 unless otherwise mutually agreed to by the parties. The Court finds that this is an adequate amount of time to accommodate any difficulties attendant to Plaintiff’s homelessness. The parties shall meet and confer on the time and location of the deposition. Plaintiff’s failure to comply with this order may lead to an inference that she has abandoned the action and may result in the imposition of serious sanctions, including terminating sanctions.

Given the delay in complying with the Court order, the Court grants Defendant’s request for monetary sanctions. Defendant is awarded monetary sanctions from Plaintiff Robyn Bleakley in the amount of $477.21 ($150/hr x 1 hr + $60 filing fee + $267.21 for travel costs to the 12/1/17 deposition). Sanctions are to be paid on or before February 23, 2018. If sanctions are not paid by that date, Defendant may prepare a formal order granting sanctions for the Court’s signature, and the order may be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Plaintiff’s request for sanctions is denied as Defendant’s motion was partially successful and was substantially justified.

Finally, the Court notes that its records reflect that Plaintiff is appearing in pro per.

Plaintiff’s counsel shall file a substitution of attorney forthwith.