Judge: Donald F. Gaffney, Case: Baez v. Itoh, Date: 2023-07-12 Tentative Ruling

TENTATIVE RULING:

Motion for Terminating Sanctions.

Defendant Kayoko Itoh moves for terminating sanctions against Plaintiff Juan Carlos Baez for failure to appear for his  deposition as ordered by the court.  For the following reasons, the motion is DENIED.

General Principles Re Discovery Sanctions

Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010(d).)  So, too, is disobeying a court order to provide discovery.  (Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) 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.)  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.  (See Code Civ. Proc., § 2031.300(c) (requests for production).)

The moving party need only show the failure to obey the court’s earlier discovery orders. Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Puritan Ins. Co. v. Sup.Ct. (Tri–C Machine Corp.) (1985) 171 Cal.App.3d 877, 884.)

If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just [Code Civ. Proc., § 2031.300(c)], including any of the following:

• Issue sanctions—ordering that designated facts be “taken as established” against the party guilty of discovery misuse [Code Civ. Proc., § 2023.030(b)];
• Evidence sanctions—prohibiting the party guilty of discovery misuse from introducing designated matters in evidence [Code Civ. Proc., § 2023.030(c)];
• Terminating (“doomsday”) sanctions—striking pleadings, in whole or in part; or dismissing that party’s action, in whole or in part; or staying further proceedings by that party until the order is obeyed; or rendering default judgment against that party [Code Civ. Proc., § 2023.030(d)]; and
• Money sanctions—in addition to or in lieu of any other sanction, an award of reasonable costs and fees incurred as a result of the failure to obey (including fees on the sanctions motion) [Code Civ. Proc., §§ 2023.030(a); 2030.300(e)].

Thus, which of the various sanctions above may be imposed for disobedience of court orders, or even whether sanctions will be granted at all, lies entirely within the court’s discretion. The court is not required to grant any particular sanction or any sanctions at all.  (See Pember v. Sup.Ct. (1967) 66 Cal.2d 601, 604 (dealing with similar provision of former statute).) Moreover, the trial court’s choice of sanctions is subject to appellate review only for abuse of discretion.  (Sauer v. Sup.Ct. (Oak Industries, Inc.) (1987) 195 Cal.App.3d 213, 228.)

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. (2009) 174 Cal.App.4th 967, 992; Caryl Richards, Inc. v. Superior Court, 188 Cal.App.2d at 303.) Before issuing terminating sanctions, the court should usually grant lesser sanctions such as orders staying the action until the derelict party complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party.  (Doppes, 174 Cal.App.4th at 99.) It is only when a party persists in disobeying the court’s orders that the ultimate sanctions of dismissing the action or entering default judgment, etc. are justified. (See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771.)

The burden of proof is on the moving party to show (by declarations) the facts essential to an award of sanctions.

Merits  

On March 8, 2023, the Court granted Defendant’s motion to compel Plaintiff’s deposition, ordering Plaintiff to appear for deposition on or before March 28, 2023.  (ROA 68.)  On March 10, 2023, Defendant’s counsel served Plaintiff’s counsel with a deposition notice set for March 23, 2023.  (Palys Dec.)  On March 21, 2023, Plaintiff’s counsel emailed defense counsel that the deposition would not go forward and needed to be cancelled.  (Id.)  Defense counsel asked for alternative dates but apparently did not receive a response.  Plaintiff did not appear for the noticed deposition on March 23, 2023.  (Id.) 

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Id.) At this juncture, terminating sanctions are not appropriate. Issue or evidentiary sanctions may be appropriate, but Plaintiff did not request any particular issue or evidentiary sanction.

Defendant to give notice.