Judge Walter P. Schwarm, Case 30-2020-01147922 2022-09-27 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2020-01147922, Date: 2022-09-27 Tentative Ruling

Plaintiff’s (Richard Fischel, M.D.) unopposed Motion for Terminating and Monetary Sanctions (Motion), filed 5-17-22 under ROA No. 75, is GRANTED.

The court GRANTS Plaintiff’s Request for Judicial Notice as to pursuant to Evidence Code section 452, subdivision (d), as to Exhibits A, B, C, D, and E.

The Motion seeks “. . . an order striking the Defendant’s Answer and awarding monetary sanctions against Defendant in favor of Plaintiff in the amount of $3,060.” (Motion; 10:7-9.) the

Code of Civil Procedure section 2023.010 states, in part, “Misuses of the discovery process include, but are not limited to, the following: . . . [¶] (g) Disobeying a court order to provide discovery.” Section 2023.030 provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . .[¶] (a) The 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. . . [¶] (b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. . . [¶] (c) The court may impose an evidence sanction . . . [¶] (d) The court may impose a terminating sanction . . .”

Section 2025.450, subdivision (h), states, “ If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, 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 deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent's testimony would be taken pursuant to that order.”

Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes), explains, “The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ‘ “attempt [ ] to tailor the sanction to the harm caused by the withheld discovery.” ’ [Citation.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citations.] [¶] The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ‘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.” ’ [Citation.] 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. ‘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.’ [Citation.] (Footnote 5 omitted.)

Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559 (Lee), states, “Code of Civil Procedure section 2023.030, subdivision (c), provides that the trial court may sanction any party engaging in a misuse of the discovery process by prohibiting that party from introducing designated matters in evidence. A failure to respond to an authorized method of discovery may constitute misuse of the discovery process. [Citation.] Nevertheless, absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful. [Citation.]”

On 6-29-21, the court granted Plaintiff’s Motion to Compel Defendant Christopher Kobelius To Attend and Testify at Deposition and for Monetary Sanctions. (Krieger Decl., ¶ 14 and Exhibit C; 6-29-21 Minute Order.) The court ordered Defendant (Christopher Kobelius) to appear for deposition no later than 8-31-21. (Krieger Decl., ¶ 14 and Exhibit C; 6-29-21 Minute Order.) On 6-30-21, Plaintiff served Defendant with a copy of the court’s 6-29-21 Minute Order. (Krieger Decl., ¶ 15 and Exhibit D.) “Despite having been properly served with the Court’s Discovery Order; Defendant never paid the awarded monetary sanctions. Nor did the Defendant make any effort whatsoever to meet and confer with Plaintiff’s counsel to arrange his deposition at a mutually agreeable date no later than August 31, 2021, or at any time whatsoever. Defendant has willfully disobeyed the Court’s Discovery Order.” (Krieger Decl., ¶ 16.)

On 2-8-22, the court granted Plaintiff’s Motion for Terminating Sanctions as to the request for monetary sanctions and denied the motion without prejudice as to the request for terminating sanctions. (Krieger Decl. ¶ 18; 2-8-22 Minute Order.) The court also ordered Defendant to “comply with the Court’s June 29, 2021 Order by appearing for deposition at a date, time, and location agreed upon by the parties no later than March 8, 2022.” (Krieger Decl., ¶ 18; 2-8-22 Minute Order.) On 2-8-22, Plaintiff served Defendant with Notice of the court’s 2-8-22 ruling by mail at the Seven Seas Address and by email. (Krieger Decl. ¶ 19 and Exhibit E.)

The Declaration of Eliot Krieger in Support of Motion states: “Since February 7, 2022 (1 day prior to the February 8, 2022 motion hearing), Plaintiff has made numerous unsuccessful attempts to schedule the Defendant’s deposition before re-filing the instant (2^nd) Motion for Terminating Sanctions. These attempts and Defendant’s continued abuses or misuse of discovery process are summarized as follows: []¶] a. On February 7, 2022, at 10:49 a.m. sent an email to Defendant advising him that we needed to schedule a date for his deposition prior to March 8, 2022. I recommended March 1st or March 4th and asked Defendant to let me know which date worked best for him. In said email I also requested a new physical mailing address for Defendant, as mail we were now sending to the Seven Seas Address was being ‘returned as undeliverable, no forwarding address.’ Finally, my email confirmed that while the U.S. post office was unable to deliver mail to his Seven Seas address, Defendant verbally confirmed to me that he continued to receive all of our e-mail communications. [¶] b. On February 7, 2022, at approximately 5:45 p.m. I had a telephone conversation with Defendant. During that conversation Defendant informed me that he was ‘willing to pay what he owed in the matter to get this matter behind him.’ Following that conversation, at 5:58 p.m. I sent an email to Defendant confirming our conversation. . . . [¶] c. On March 4, 2022, at 10:45 a.m. I received an email from Defendant asking me to provide more dates for the deposition; and indicating he would send ‘that other email that we talked about as well.’ (Krieger Decl., ¶ 20 and Exhibits F and H.)

The Motion states, “The trial in this matter is set for November 4, 2022. The Plaintiff cannot adequately prepare for trial without the Defendant’s deposition. . . . Defendant has not paid the monetary sanctions ordered by this Court on June 29, 2021, and February 8, 2022, demonstrating that a less severe sanction has not produced compliance by the Defendant with the discovery orders.” (Motion; 7:3-8.)

The evidence demonstrates, and the court finds, that Defendant willfully disobeyed both the court’s 6-29-21 order and 2-8-22 orders. As previously stated in the court’s 2-8-22 order, “ ‘. . . any further failure to comply with the court’s discovery orders could result in terminating sanctions’ ” (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183-1184), or evidence or issue sanctions. The court proceeded incrementally by imposing monetary sanctions against Defendant. (6-29-21 and 2-8-22 Minute Orders.) The court’s lesser monetary sanctions issued on 6-29-21 and 2-8-22 have not gained compliance. Defendant’s failure to appear for deposition has impacted Plaintiff’s ability to prepare for trial.

Based on the above, the court GRANTS Plaintiff’s (Richard Fischel, M.D.) unopposed Motion for Terminating and Monetary Sanctions filed 5-17-22 under ROA No. 75. Pursuant to Code of Civil Procedure section 2023.030, subdivision (d)(1), the court STRIKES Defendant’s Answer filed on 8-10-20 under ROA No. 12. The court also awards a monetary sanction against Defendant and in favor of Plaintiff in the amount of $3,060.00. (Code Civ. Proc., § 2030.030, subd. (a); Krieger Decl., ¶ 26.)

The court will discuss a status conference date with the parties at the hearing on 9-27-22.

Plaintiff is to give notice.