I. BACKGROUND  

Plaintiffs Kenyce Smith and Abigail Grey (“Grey”) filed this action against defendant Cody Araghachi for damages arising from an automobile collision.  

Defendant Cody Yaraghchi, erroneously sued and served as Cody Araghachi, (“Yaraghchi”) now moves for terminating sanctions against Plaintiff Grey to dismiss her action on the grounds that she failed to abide by the Court’s September 19, 2023 Order to appear for her deposition. Defendants Uber Technologies, Inc., Rasier, LLC and Rasier-CA, LLC (“Uber Defendants”) join the motion. Plaintiff Grey opposes Yaraghchi’s motion, and Yaraghchi filed a reply. 

This matter was initially heard on February 20, 2024. At the hearing, the parties provided that Plaintiff Grey’s deposition was scheduled for March 27, 2024 at 11:00 a.m., and that Plaintiff Grey was in agreement. (Min. Order, Feb. 20, 2024.) The motion was continued to April 18, 2024, and the parties were to file a declaration updating the Court if the deposition was held or not by March 28. (Ibid.) 

On March 28, 2024, Yaraghchi and the Uber Defendants (collectively, “Defendants”) filed a joint declaration pursuant to the Court’s order. Defendants provide that Plaintiff Grey appeared remotely on March 27, 2024 at 11:30 a.m. At 2:00 p.m., the parties took a 20-minute lunch break, with the deposition to resume at 2:20 p.m. During the break, Plaintiff Grey disconnected from Zoom and did not return. Plaintiff’s counsel stated they did not know where Plaintiff was and that calls were going straight to voicemail. By 3:20 p.m., Plaintiff Grey did not return, and the deposition was suspended. Defendants argue the deposition was not completed, and that they received no information or explanation as to why she failed to complete her deposition.  

On April 4, 2024, Plaintiff Grey filed a declaration in opposition. Plaintiff Grey declares she was on her way to her counsel’s office for the deposition, but was forced to return home due to a flat tire. At home, she had connectivity issues and could not connect to the Zoom meeting until 11:30 a.m. After the lunch break, Plaintiff Grey provides she had severe neurological issues of a debilitating headache and dizziness, which led to a brief period of unconsciousness where she fell asleep. Plaintiff Grey declares that once she awakened, she was unable to reconnect to Zoom after multiple attempts. Plaintiff requests her complaint to not be dismissed, and that she is willing to complete her deposition at any time convenient for Defendants. 

The parties are fully apprised of the issues. In conjunction with the current declarations, the Court will proceed on the merits, and incorporate portions of its previous tentative on this matter. 

II. TERMINATING SANCTIONS  

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.)   

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 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 for 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].) 

Yaraghchi argues Plaintiff Grey appeared for her deposition on August 25, 2023, but did not produce any documents responsive to production of documents request in the deposition notice. Plaintiff’s deposition lasted two hours and forty-two minutes. Because the deposition was not completed, Yaraghchi proceeded with its motion to compel Plaintiff Grey’s deposition, which was granted on September 19, 2023. Thereafter, Plaintiff’s counsel and defense counsel met and conferred, and agreed to November 9, 2023. However, on November 8, 2023, Plaintiff’s counsel requested to reschedule the deposition because it was never placed on their calendar. Yaraghchi obtained a certificate of non-appearance on November 9, 2023. Defense counsel conferred with Plaintiff’s counsel once more, and the parties agreed to November 29, 2023. However, on November 29, 2023, Plaintiff Grey failed to appear for her deposition. After the hearing on this motion was continued, Plaintiff Grey’s deposition was not completed since she did not return after her lunch break, and both Defendants aver that no explanation was provided as of the date of Defendants’ joint declaration. Therefore, Defendants contend terminating sanctions are still warranted for continuous failures to abide by the Court’s order.  

Here, Plaintiff Grey’s opposition regarding her state of unconsciousness as the reason for her failure to resume her deposition is sufficient for the Court to not impose terminating sanctions at this time. Although this has resulted in a further delay, Plaintiff Grey has provided enough reason to demonstrate that the failure to complete the deposition was not due to an outright refusal to comply with her discovery obligations.  

Based on the foregoing, the Court does not find terminating sanctions warranted at this juncture. Yaraghchi’s motion for terminating sanctions is therefore DENIED without prejudice. The Uber Defendants’ request for terminating sanctions is similarly denied. The parties must meet and confer on a mutually agreeable date to resume Plaintiff Grey’s deposition, to be completed within the next thirty (30) days. Given the number of times this deposition has been rescheduled, the Court will not be inclined to give Plaintiff any further leeway before imposing terminating sanctions. 

III. MONETARY SANCTIONS  

Yaraghchi did not request lesser sanctions in his noticed motion. The Uber Defendants, on the other hand, request monetary sanctions in the amount of $3,825.  

The Uber Defendants are awarded 1 hour to prepare the motion and reply, and one hour to appear at the hearing, all at the requested rate of $250 per hour, for a total of $750 in attorney’s fees for failure to complete her deposition.  

Sanctions are imposed against Plaintiff Grey and her counsel, jointly and severally. Plaintiff Grey and/or her counsel are ordered to pay sanctions to the Uber Defendants, by and through counsel of record, in the total amount of $750, within twenty (20) days. 

Moving party is ordered to give notice. 

PLEASE TAKE NOTICE: 

Dated this 17th day of April 2024