Judge Audra Mori, Case 19STCV30622 2022-10-13 Tentative Ruling

Plaintiff Dashiell Hammett (“Plaintiff”), a minor by and through his guardian ad litem, Sahar Malek, filed this action against Defendant Southern California Alcohol and Drug Programs, Inc. (“Defendant”) for injuries related to Plaintiff’s alleged fall from a changing table while under Defendant’s care. The complaint alleges causes of action for (1) negligence and (2) respondeat superior/vicarious liability.

Defendant, at this time, moves to compel non-parties Brandon Hammett’s (“Brandon”) and Melissa Hammett’s (“Melissa”) compliance with a deposition subpoena for personal appearance and production of documents served upon each of them. The motions are unopposed.

In addition, Defendant moves for terminating sanctions dismissing Plaintiff’s complaint due to Plaintiff’s failure to submit to his medical examination. Plaintiff opposes the motion, and Defendant filed a reply.

The service of a deposition notice, pursuant to CCP § 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition. (CCP § 2025.280(a).) To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq. (CCP §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP § 2025.480(i).)

In this case, Defendant asserts that Brandon and Melissa are Plaintiff’s biological parents, and that Plaintiff alleges that at the time of the incident, Melissa was attending therapy services at Defendant’s facility while another patient was watching him. Defendant attests Brandon and Melissa were personally served with deposition subpoenas but failed to appear for their noticed depositions. The motions to compel Brandon’s and Melissa’s compliance with the deposition subpoenas are unopposed. Further, no objections were filed to the subpoenas, nor was a motion to quash filed.

The motions to compel Brandon and Melissa to comply with the deposition subpoenas are granted. Brandon and Melissa are each ordered to appear for deposition at a date, time, and location to be noticed by Defendant. Defendant must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service).

Defendant additionally requests a $500 forfeiture under CCP § 1992 and sanctions of $782 against each Brandon and Melissa. As to the $500 forfeiture, the expenses allowed by CCP § 1992 must be sought in a civil suit separate from the pending action. (See New York Times Co. v. Superior Court (1990) 51 Cal. 3d 453, 464.) Thus, the request for the $500 forfeiture is denied.

As to the requests for sanctions, CCP § 1987.2(b)(1) provides that the court “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

As to the motion to compel Brandon to comply with the deposition subpoena, Defendant is awarded the requested 0.8 hours for the motion and 0.5 hours for appearing at the hearing as it relates to this motion at the rate of $190 per hour, for a total attorney fees award of $247 [$152+95]. Further, Defendant is awarded the $60 motion filing fee as costs. Sanctions are sought and imposed against Brandon. Brandon is ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $307, within thirty (30) days.

As to the motion to compel Melissa to comply with the deposition subpoena, Defendant is awarded the requested 0.8 hours for the motion and 0.5 hours for appearing at the hearing as it relates to this motion at the rate of $190 per hour, for a total attorney fees award of $247 [$152+95]. Further, Defendant is awarded the $60 motion filing fee as costs. Sanctions are sought and imposed against Melissa. Melissa is ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $307, within thirty (30) days.

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "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." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "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, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting from the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

Here, Defendant moves for terminating sanctions against Plaintiff for Plaintiff’s failure to submit to a medical examination in violation of the Court’s May 17, 2022 order. Defendant asserts that it has been seeking Plaintiff’s medical exam since November 2021, but Plaintiff refuses to comply. Defendant states that on May 17, 2022, the Court ordered Plaintiff to submit to a medical exam within 60 days, and that after attempting to meet and confer with Plaintiff, Defendant noticed Plaintiff’s medical exam for September 9, 2022 at Defendant’s expert’s Long Beach, California office. Defendant asserts that less than 24 hours before the exam, Plaintiff belatedly objected to the location of the exam for the first time. Defendant argues that Plaintiff’s failure to appear for a medical exam warrants terminating sanctions. Additionally, Defendant requests monetary sanctions against Plaintiff’s counsel.

In opposition, Plaintiff argues that Defendant for the second time is seeking dispositive sanctions in a case where Plaintiff’s parents retained a law firm to pursue Plaintiff’s personal injury claim but then lost physical and legal custody of Plaintiff. Plaintiff asserts that his counsel has ascertained the location of Plaintiff’s adoptive parents, and that on the eve of the medical exam noticed for Plaintiff, Plaintiff’s counsel was informed that Plaintiff suffers from behavioral and cognitive problems that make it dangerous to travel with him for trips further than 15 miles. Plaintiff provides that Plaintiff’s counsel informed Defendant of this issue, but Defendant’s counsel refused to reschedule the exam to a closer location. Plaintiff argues that terminating sanctions are unwarranted under the circumstances.

In reply, Defendant contends terminating sanctions are appropriate for Plaintiff’s failure to comply with the Court’s May 17, 2022 order, and that Plaintiff never complained that the noticed exam date was inconvenient for Plaintiff, his adoptive parents, or Plaintiff’s counsel. Defendant contends the opposition is replete with misrepresentations, and that Plaintiff’s guardian ad litem’s and counsel’s delays are attributable to Plaintiff.

On May 17, 2022, the Honorable Judge Feeney heard Defendant’s first motion for terminating sanctions after the parties did not stipulate to the Commissioner who was then presiding over this Department to hearing the motion. The motion for terminating sanctions was denied. “The denial [was] without prejudice to Defendant filing a motion to compel Plaintiff to appear for his physical exam that fully complies with the Code’s requirements.” (Min. Order, May 17, 2022.) The Court further ordered:

The Independent Medical Examination (IME) of Plaintiff to occur within 60-days. Counsel are ordered to meet/confer within the next week Re: Agreed upon examination date.

Counsel for Defendant is ordered to contact Defendant's expert regarding available dates and to convey said information to Counsel for Plaintiff.

Counsel for Plaintiff is ordered to confer with the minor's adoptive parents Re: availability of dates for Plaintiff's IME and provide those to Counsel for Defendant.

Following the May 17, 2022 hearing, the parties met and conferred regarding Plaintiff’s exam, and after receiving no response about Plaintiff’s availability, on July 18, 2022, Defendant noticed Plaintiff’s exam for September 8, 2022. However, due to an alleged scheduling conflict, on August 1, 2022, Defendant re-noticed Plaintiff’s exam for September 9, 2022, at its expert’s Long Beach office. On September 8, 2022, Plaintiff’s counsel asserts that it learned through telephone conversations with Plaintiff’s adoptive parents about the cognitive disabilities that make it extremely difficult for Plaintiff’s adoptive parents to safely travel long distances. (Opp. Sanguinetti Decl. ¶¶ 30-31.) Plaintiff’s counsel then informed Defendant’s counsel about the Plaintiff’s condition. (Id. at ¶ 32.) Plaintiff did not appear for his exam on September 9, 2022, and Defendant then filed this second motion for terminating sanctions.

Given the circumstances, and that Plaintiff’s counsel attempted to inform Defendant of Plaintiff’s disabilities and potential issues with the location of the examination, the imposition of terminating sanctions would be unduly harsh. A decision to order a terminating sanction should not be made lightly unless the violation is willful, preceded by a history of abuse and evidence shows that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Moreover, pursuant to Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 776, the Court should typically impose lesser sanctions prior to awarding terminating sanctions, and Defendant does not establish that less severe sanctions would be ineffective in forcing Plaintiff to appear for a physical exam.

The denial of Defendant’s first motion for terminating sanctions on May 17, 2022, expressly noted it was without prejudice to Defendant filing a motion to compel Plaintiff to appear for his physical exam that fully complies with the Code’s requirements. However, following Plaintiff’s failure to appear for the exam on September 9, 2022, Defendant did not file a motion to compel, nor is there any evidence that Defendant attempted to meet and confer about rescheduling the exam after communicating with Plaintiff’s counsel. Defendant instead filed this motion for terminating sanctions. Furthermore, while the Court ordered that Plaintiff’s exam was to occur within 60 days on May 17, 2022, the Court did not compel Plaintiff to comply with any particular demand for a physical exam, nor did it compel Plaintiff to appear for the exam at any particular location or consider any issues concerning such.[1] The order expressly noted, “Defendant’s request for an order compelling Plaintiff to comply with Defendant’s second notice for a physical exam is also denied. Defendant’s motion does not fully comply with CCP § 2032.250.” (Min. Order, May 17, 2022.)

Defendant does not otherwise identify any repeated discovery abuses by Plaintiff or provide evidence showing Plaintiff is failing to participate in this litigation. In addition, Plaintiff’s counsel provides that despite some delays, it has now located Plaintiff’s adoptive parents, and Plaintiff’s adoptive parents have retained Plaintiff’s counsel to represent Plaintiff. Plaintiff submits a declaration from one of Plaintiff’s custodial parents attesting to these facts.[2] (Opp. Exh. R.)

Based on the foregoing, the Court finds terminating sanctions unduly harsh and unwarranted at this time. Defendant’s second request for terminating sanctions is denied. Nonetheless, as Defendant asserts, this matter is now more than three years old. Given Plaintiff’s counsel’s representations that they have located and been retained by Plaintiff’s adoptive parents, the Court expects Plaintiff to diligently prosecute this matter.

The Court will impose the lesser monetary sanctions, as Plaintiff should act with greater diligence. Plaintiff’s counsel was in communication with Plaintiff’s family beginning at some point before May 17, 2022. Plaintiff’s counsel assured Defendant that counsel was “seeking dates and times during which Plaintiff’s adoptive parents were able to present him for a DME” in May and June. (Opp. at p. 5:27-28.) However, Plaintiff’s counsel does not provide sufficient explanation or justification for counsel’s failure to discover the nature of Plaintiff’s condition and travel limitations until the eve of the September 9, 2022, deposition.

Pursuant to CCP § 2023.030(a), the Court awards Defendant three hours for preparing the motion, one hour for the reply, and one hour for appearing at the hearing all at the requested rate of $190 per hour, for a total attorney fees award of $950.00. Further, Defendant is awarded the motion filing fee of $60 and the $500 cancellation fee for failing to appear at the September 9, 2022 medical exam. Sanctions are sought and imposed against Plaintiff’s counsel only. Plaintiff’s counsel is to pay the sanctions to Defendant, by and through counsel of record, in the total amount of $1,510.00 within 20 days.

Hon. Audra Mori

Judge of the Superior Court

[1] Defendant further provides that on June 7, 2022, the parties signed a stipulation agreeing to a 60-day extension to allow Plaintiff’s exam to go forward.

[2] To the extent that Plaintiff’s counsel asserts a motion to appoint Plaintiff’s custodial parent as his guardian ad litem has been filed, as Plaintiff’s counsel has previously been informed in this matter, an Application and Order for Appointment of Guardian Ad Litem must be filed on mandatory Judicial Council form Civ-010. To date, no such application has been filed with the Court.