Judge: Deborah C. Servino, Case: 30-2020-01149056, Date: 2022-10-28 Tentative Ruling

Plaintiff Megan O’Rourke’s motion for order striking Defendant Andrew Sandoval’s answer is denied. Plaintiff’s alternative motion for order compelling Sandoval to appear at deposition is granted.  The portion of the motion seeking an order compelling production of documents is denied without prejudice. 

Plaintiff seeks to have Sandoval’s answer stricken for his failure to appear for deposition. In essence, she is seeking a terminating sanction.  Generally speaking, violation of a discovery order is required for imposition of issue or evidentiary sanctions.  While Plaintiff contends Sandoval’s responses to written discovery were insufficient, Plaintiff did not move to compel further responses to that discovery.

Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court’s discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) The court is not required to grant any particular sanction or any sanctions at all.  (Pember v. Superior Court (1967) 66 Cal.2d 601, 604.)  Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (Code Civ. Proc., § 2031.300, subd. (c) [requests for production].)

The trial court should tailor the sanction for such conduct to “fit the crime.”  (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)  The court cannot impose sanctions as punishment; the choice of sanctions should not give the moving party more than it would have gotten had the discovery been responded to.  (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992.)  A 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. Generally, a decision to order terminating sanctions should not be made lightly. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) 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. Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Ibid.; Stein v. Hassen (1973) 34 Cal.App.3d 294; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

Cases in which a court issued sanctions even where a discovery order was not violated are not analogous to this case.  Rather, they usually involve essentially spoliation of evidence/discovery abuses.  (See Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal. App. 4th 736, 762-764; R.S. Creative, Inc. v. Creative Cotton, Ltd., supra, 75 Cal.App.4th at p. 495.)

Here, Sandoval did not serve an objection, but simply failed to appear.  The record does not support the imposition of the “severest” sanctions. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 174-176 [affirming trial court’s dismissal of plaintiff’s action for disobedience of its order to follow discovery where plaintiff’s vigorous and persistent resistance to provide discovery was vividly demonstrated in the record]; Williams v. Travelers Ins. Co. (1975) 49 Cal.App.3d 805, 810 [affirming trial court’s imposition of terminating sanctions where record was “replete with evidence of continuous use of obstructive tactics by [the plaintiff] during earlier pretrial proceeding” and the plaintiff failed to comply with multiple discovery orders despite being given additional opportunities to provide further answers].) Plaintiff fails to demonstrate that Sandoval has violated any of this court’s orders in this case. The court has yet to impose any lesser sanctions.

In contrast, Plaintiff points only to Sandoval’s continued failure to appear for deposition.  Before now though, Plaintiff did not move for an order compelling Sandoval to appear.  For this reason, the motion to strike Sandoval’s answer is denied.

Alternatively, Plaintiff seeks to compel Sandoval to appear for his deposition.  Code of Civil Procedure section 2025.450, subdivision (a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for deposition the party giving notice may move for an order compelling the deponent’s attendance and testimony at deposition.  The motion must be accompanied by a declaration under Code of Civil Procedure section 2016.040 stating that the moving party contacted the deponent to inquire about the nonappearance.  (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Section 2025.450, subdivision (a) also provides that the moving party may seek an order compelling production of documents sought in the deposition notice, but such motion must set forth facts showing good cause justifying the production of the documents sought.  (Code Civ. Proc., § 2025.450, subds. (a), (b)(1).)  A showing of “good cause” is made by declarations containing specific facts justifying inspection of the documents described in the notice.   (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:801.2.)  The moving party must also submit a separate statement of the matters in dispute and set forth the legal and factual reasons for why documents should be produced.  (Cal. Rules of Court, rule 3.1345(a)(5).)

Plaintiff’s motion to compel appearance is proper.  Plaintiff’s counsel’s supporting declaration does not state that he contacted Sandoval afterward to inquire about the nonappearance. But given Sandoval’s unresponsiveness when Plaintiff was trying to set a date with him and, later, to confirm he would appear, such an attempt likely would have been futile.  For this reason, the motion to compel Sandoval’s appearance at deposition is granted.  As to production of documents, Plaintiff has not made a showing of good cause.  The motion seeking an order compelling production of documents is denied without prejudice. Sandoval is ordered to appear for his deposition within 15 days of the notice of ruling, unless Plaintiff’s counsel agrees to a later date.

Plaintiff is awarded monetary sanctions against Sandoval. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Within 30 days of the notice of ruling, Sandoval shall pay $2,975 to Law Offices of Scott A. Bonzell. 

Plaintiff shall give notice of the ruling.