Judge: Martha K. Gooding, Case: 2019-01106337, Date: 2022-11-07 Tentative Ruling

Motion for Terminating Sanctions         

The Motion for Terminating Sanctions brought by Defendant Saddleback Valley Unified School District is DENIED in part and GRANTED in part.   The request for terminating, issue and evidentiary sanctions is DENIED; however, Plaintiff is ordered to appear for and conclude his deposition within 15 days of this order, unless otherwise agreed upon by both parties in writing.  Additionally, Plaintiff and his counsel of record, Andal Law Group, are jointly ordered to pay sanctions to Defendant, in the amount of $2,850.00, within 30 days of this order. (Code Civ. Proc. [“CCP”] §2023.030(a), C.C.P. §2023.010(g) and C.C.P. §2025.450(h)).

Pursuant to CCP section 2023.030(d), the Court “after notice to any affected party, person, or attorney and after opportunity for hearing, may impose [terminating sanctions] against anyone engaging in the conduct that is a misuse of the discovery process…” Similarly, CCP sections 2023.030(b) and (c) permit the imposition of issue and evidentiary sanctions.

Pursuant to CCP section 2023.010(g), it is a misuse of the discovery process to disobey a court order to provide discovery.

Additionally, pursuant to CCP section 2025.450(h), if a party fails to obey an order compelling attendance at a deposition, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party…”

“’California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process,’’ including terminating sanctions.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390).  “’The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action.” (Id.). “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.’” (Id.).

“A decision to order terminating sanctions should not be made lightly.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279 [overruled on other grounds by Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273).  “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.” (Id. at 279-280). “Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390).

Here, it is undisputed the Court issued an order on July 20, 2022, compelling Plaintiff to appear for deposition within 30 days.  (Berkeley Decl. ¶ 18 and Yakim Decl. ¶ 2; See also ROA No. 267).

It also is undisputed that Plaintiff failed to comply with that order.   (Berkeley Decl. ¶¶ 19-26).  Counsel for Defendant indicates he attempted to meet and confer to establish a mutually agreeable date, but he initially received no response to these efforts. (Id. ¶ 19).  Subsequently, after taking Plaintiff’s nonappearance on July 27, 2022, Defendant again attempted to determine mutually agreeable dates, but Plaintiff’s counsel instead informed Defendant he would seek to advance the hearing on Plaintiff’s Motion for Protective Order. (Id. ¶¶ 22-26 and Exhibit L). 

In response to the above, Plaintiffs’ Counsel indicates that, following the June 20th order, “Plaintiff was on vacation with his family and was not available until after July 23, 2022.” (Yakim Decl. ¶ 3).  Thereafter, Counsel simply stated that “Plaintiff was not available” for July 27, 2022, either. (Id. ¶ 4.)

While Plaintiff asserts the failure to comply with the above order was not willful, the declaration of counsel establishes the opposite:  Counsel makes clear that the failure to comply with the June 20th order was the result of Plaintiff’s desire to have his Motion for Protective Order heard first. (Yakim Decl. ¶¶ 5-6).  “Plaintiff asserted the right to have the Motion for Protective Order be heard on its merits before being compelling (sic) Plaintiff to a deposition.” (Id. ¶ 6). “Plaintiff’s mother and guardian ad litem, C.D. Doe preferred to have Plaintiff’s Motion for Protective Order be heard first…” (Id.).

The above makes clear that Plaintiff was aware of the June 20th order and, despite such knowledge, elected not to comply.

Based on the above, the record demonstrates that Plaintiff willfully violated an order of this Court.  Nevertheless, the Court is inclined to find that terminating, evidentiary and issue sanctions are not yet necessary to compel compliance.

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Dopes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992).  “Discovery 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.” (Id.).  “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.).

Although defense counsel describes multiple instances in which he contends acquiring discovery from Plaintiff has been difficult (see Reply Berkeley Decl. ¶¶ 11-25), the record indicates that only one Court order has been violated.   Additionally, the record suggests that neither terminating nor evidentiary sanctions are necessary, at least at this juncture, to compel compliance.

Per counsel for Plaintiff, “[f]ollowing the Court’s decision denying Plaintiff’s Motion for Protective Order, Plaintiff complied with the Court’s decision and has attempted to diligently coordinate a mutual time with Defendant to schedule Plaintiff’s deposition.” (Yakim Decl. ¶ 7).  Counsel indicates Plaintiff is available for deposition on November 10, 2022, at 11:00 a.m. (Id. ¶10).

As noted, the evidence indicates it was Plaintiff’s desire to have his Motion for Protective Order heard first that prompted his non-compliance.  Defense counsel concedes that Plaintiff referenced his intention to file an Ex Parte Application to shorten the hearing time for his Motion for Protective Order, in declining to appear for deposition. (Berkeley Reply Decl. ¶ 3).  Although this desire does not justify the failure to comply with a court order, it does suggest that terminating sanctions are not necessary.

Nevertheless, the Court is inclined to issue monetary sanctions in the requested amount of $2,850.00 as it appears this motion was brought before Plaintiff’s counsel finally relented and agreed to make Plaintiff available for deposition.  It should not have taken a motion to get Plaintiff to comply with the Court’s order.

Pursuant to CCP section 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  “If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2023.030(a)).

Additionally, the Court previously granted Defendant’s Motion to Compel Deposition, pursuant to CCP section 2025.450. (ROA No. 267). Pursuant to CCP section 2025.450(h), the Court may impose a monetary sanction against a deponent who fails to comply with a court order to attend deposition.

Although Plaintiff asserts it would be unjust to order monetary sanctions because Plaintiff has subsequently offered deposition dates, this argument is unpersuasive. (Yakim Decl. ¶ 10).  

The Motion requests sanctions in the amount of $2,850.00. (Motion: 10:10-11).  The Court notes Plaintiff offers no objection to the amount requested, and the Court finds the amount to be reasonable. 

Defendant is ordered to give notice.