Judge: Wesley L. Hsu, Case: 21STCV17487, Date: 2023-04-20 Tentative Ruling
Case Number: 21STCV17487 Hearing Date: April 20, 2023 Dept: L
1. Defendant Kaj Wendall Faaborg’s Motion to
Compel Responses to Form Interrogatories from Plaintiff Ricardo Olivas is GRANTED. Plaintiff is to provide verified responses, without objections, to Faaborg’s
Form Interrogatories, Set No. One, within 30 days from the date of the notice
of ruling. Sanctions are awarded in the reduced amount of $400.00 and are
payable within 30 days of the date of the notice of ruling.
2. Defendant Kaj Wendall Faaborg’s Motion to Compel
Responses to Request for Production of Documents, Set One from Plaintiff
Ricardo Olivas is GRANTED. Plaintiff is to provide verified responses,
without objections, to Faaborg’s Request for Production of Documents, Set No.
One, within 30 days from the date of the notice of ruling. Sanctions are awarded
in the reduced amount of $400.00 and are payable within 30 days of the date of
the notice of ruling.
3. Defendants Ford Motor Company’s and Will Tiesiera
Ford, Inc.’s Motion for an Order Admitting Clay A. Guise as Counsel Pro Hac
Vice is GRANTED.
4. Defendant Kaj Wendall Faaborg’s Motion to Compel the
Deposition of Plaintiff Ricardo Olivas is GRANTED. Plaintiff is to submit to
his deposition within 30 days from the date of the notice of ruling. Plaintiff
may appear remotely. Sanctions are awarded in the reduced amount of $953.60 and
are payable within 30 days of the date of the notice of ruling.
5. Defendants Ford Motor Company and Will Tiesiera Ford,
Inc.’s Motion for Terminating Sanctions Against Plaintiff Ricardo Olivas is GRANTED.
The court declines to award any additional sanctions.
Background
Case No. 21STCV17487
Plaintiffs Linda Marie Avera, individually and as the
successor-in-interest to the Estate of Jeremy Richard Olivas and Ricardo Olivas
(“Avera/Olivas”) allege as follows: On January 9, 2020, Plaintiffs’ son, Jeremy
Richard Olivas (“Jeremy”) was driving a 2004 Ford Mustang (“subject vehicle”)
westbound on State Route 60 when it was rear-ended by a 2014 Dodge Ram 1500 van
driven by Kaj Wendall Faaborg (“Faaborg”). The subject vehicle’s driver’s seat
back collapsed rearward, causing Jeremy to be thrown into the rear passenger
compartment. The impact of the collision pushed the rear suspension and/or
other component parts of the subject vehicle into the gas tank of the subject
vehicle, which ruptured and caused the subject vehicle to ignite in flames.
Jeremy was killed.
On May 10, 2021, Avera/Olivas filed a complaint, asserting causes of
action against Ford Motor Company, Ltd. (“FMC”), Will Tiesiera Ford, Inc. (“Will
Tiesiera”), Faaborg and Does 1-50 for:
1. Strict Product Liability
2. Negligent Product Liability
3. Motor Vehicle Negligence
On July 19, 2021, the court related Case Nos. 21STCV17487 and
21STCV18090; Case No. 21STCV17487 was designated as the lead case. On December
8, 2021, Case Nos. 21STCV17487 and 21STCV18090 were consolidated for discovery
and pretrial matters.
On January 11, 2022, Avera dismissed her complaint, without prejudice.
On May 19, 2022, the court related Case No. 22STCV00500 with consolidated
Cases Nos. 21STCV17487 and 21STCV18090; on August 2, 2022, the court
consolidated the foregoing cases for all purposes and designated Case No.
21STCV17487 as the lead case.
On September 30, 2022, this case was
transferred from Department 30 of the Personal Injury Court to this instant
department.
A Status Conference is set for April 20,
2023.
Case No. 21STCV18090
Plaintiff Marshall
Tanaka (‘Tanaka”) alleges as follows: On January 9, 2020, Tanaka was driving a
2005 Honda Odyssey (“Tanaka’s vehicle”) westbound on State Route 60 when
subject vehicle was rear-ended by Faaborg. As a result of the impact, the
subject vehicle was propelled forward into Tanaka’s vehicle. The fire from the
subject vehicle spread to Tanaka’s vehicle and caused catastrophic burns to
Tanaka’s face, hands and body.
On May 13, 2021, Tanaka filed a complaint, asserting causes of action
against FMC, Will Tiesiera, Faaborg and Does 1-50 for:
1. Strict Product Liability
2. Negligent Product Liability
3. Motor Vehicle Negligence
On July 19, 2021, the court related Case Nos. 21STCV17487 and
21STCV18090; Case No. 21STCV17487 was designated as the lead case. On December
8, 2021, Case Nos. 21STCV17487 and 21STCV18090 were consolidated for discovery
and pretrial matters.
On May 19, 2022, the court related Case No. 22STCV00500 with consolidated
Cases Nos. 21STCV17487 and 21STCV18090; on August 2, 2022, the court
consolidated the foregoing cases for all purposes and designated Case No.
21STCV17487 as the lead case.
Case No. 22STCV00500
Plaintiff Linda Marie Avera, individuals and as the successor-in-interest
to the Estate of Jeremy Richard Olivas (“Avera”) alleges as follows:
On January 5, 2022, Avera filed a complaint, asserting causes of action
against FMC, Will Tiesiera, Faaborg and Does 1-50 for:
1. Strict Product Liability
2. Negligent Product Liability
3. Motor Vehicle Negligence
4. Successor In Interest Damages Including
Decedent Jeremy Olivas’ Non-Economic Damages and for Exemplary Damages
On May 19, 2022, the court related Case No. 22STCV00500 with consolidated
Cases Nos. 21STCV17487 and 21STCV18090; on August 2, 2022, the court
consolidated the foregoing cases for all purposes and designated Case No.
21STCV17487 as the lead case.
1. Faaborg’s Motion to Compel Re: Form Interrogatories
Legal Standard
A response to interrogatories is due
30 days after service. (Code Civ. Proc., § 2030.260, subd.
(a).) “If a party to whom
interrogatories are directed fails to serve a timely response, . . . [t]he
party propounding the interrogatories
may move for an order compelling response to the
interrogatories.” (Code Civ. Proc., §
2030.290, subd. (b).)
“The court
shall impose a monetary sanction . . . against any party, person, or attorney
who unsuccessfully makes or opposes a motion to compel a response to
interrogatories, 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 . . .” (Code Civ. Proc., § 2030.290, subd. (c).)
Discussion
Sanctions
Faaborg seeks sanctions against
Plaintiff in the amount of $1,250.00 [calculated as follows: 4 hours preparing
motion, plus 2 hours reviewing opposition and preparing reply, plus 1 hour
preparing for and attending hearing at $170.00/hour, plus $60.00 filing fee].
Utilizing a Lodestar approach, and
in view of the totality of the circumstances, the court finds that the total
and reasonable amount of attorney’s fees and costs incurred for the work
performed in connection with the pending motion is $400.00 (i.e., 2 hours at $170.00/hour,
plus $60.00 filing fee). Sanctions are payable within 30 days from the date of
the notice of ruling.
2. Faaborg’s Motion to Compel Re: Request for Production
of Documents
Legal Standard
A response to a request for production
of documents is due 30 days after service. (Code Civ.
Proc., § 2031.260, subd. (a).) “If a
party to whom a demand for inspection, copying, testing, or
sampling is directed fails to serve a
timely response to it, . . . [t]he party making the demand may
move for an order compelling response
to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).)
“[T]he court
shall impose a monetary sanction . . . against any party, person, or attorney
who
unsuccessfully makes or opposes a
motion to compel a response to a demand for inspection,
copying, testing, or sampling, 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.”
(Code Civ. Proc., § 2031.300, subd.
(c).)
Discussion
See synopsis of Motion
#1.
Sanctions
Faaborg seeks sanctions against
Plaintiff in the amount of $1,250.00 [calculated as follows: 4 hours preparing
motion, plus 2 hours reviewing opposition and preparing reply, plus 1 hour
preparing for and attending hearing at $170.00/hour, plus $60.00 filing fee].
Utilizing a Lodestar approach, and
in view of the totality of the circumstances, the court finds that the total
and reasonable amount of attorney’s fees and costs incurred for the work
performed in connection with the pending motion is $400.00 (i.e., 2 hours at $170.00/hour,
plus $60.00 filing fee). Sanctions are payable within 30 days from the date of
the notice of ruling.
3. FMC’s and Will Tiesiera’s Pro
Hac Vice
Legal Standard
“A person desiring to
appear as counsel pro hac vice in a superior
court must file with the court a verified application together with proof of
service by mail in accordance with Code of Civil Procedure section 1013a of a
copy of the application and of the notice of hearing of the application on
all parties who have appeared in the cause and on the State Bar of California
at its San Francisco office. The notice of hearing must be given at the time
prescribed in Code of Civil Procedure section 1005 unless the court has
prescribed a shorter period.” (CRC Rule 9.40, subd. (c)(1).)
“The application must state: (1)
The applicant's residence and office address; (2) The courts to which the
applicant has been admitted to practice and the dates of admission; (3) That
the applicant is a licensee in good standing in those courts; (4) That the
applicant is not currently suspended or disbarred in any court; (5) The title
of each court and cause in which the applicant has filed an application to
appear as counsel pro hac vice in this state in
the preceding two years, the date of each application, and whether or not it
was granted; and (6) The name, address, and telephone number of the active
licensee of the State Bar of California who is attorney of record.” (CRC Rule 9.40, subd. (d).)
“An applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable
fee not exceeding $50 to the State Bar of California with the copy of the
application and the notice of hearing that is served on the State Bar. . .” (CRC Rule 9.40, subd. (e).)
Discussion
FMC and Will
Tiesiera move, pursuant to California Rules of Court Rule 9.40, for an order
allowing the pro hac vice admission of Clay A. Guise.
The application complies with the
requirements of California Rules of Court Rule 9.40; accordingly, the application is granted.
4. Faaborg’s Motion to Compel Deposition
Legal Standard
A motion to compel
deposition “shall be accompanied by a meet and confer declaration under Section
2016.040 or, when the deponent fails to attend the deposition. . . , by a
declaration stating that the petitioner has contacted the deponent to inquire
about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)
A court shall
impose monetary sanctions if the motion to compel is granted, unless the one
subject to sanction acted with substantial justification or other circumstances
would make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450,
subd. (g)(1).)
Discussion
Van Wagner represents as follows: On June 7, 2022, Faaborg mail-served
a “Notice of Taking the Deposition of Plaintiff Ricardo Olivas,” wherein
Plaintiff’s remote deposition was scheduled for June 24, 2022. (Van Wagner
Decl., ¶ 3, Exh. A.) On June 16, 2022, Faaborg’s counsel sent a letter to Plaintiff
memorializing their June 14, 2022 telephone conversation wherein Plaintiff
confirmed his mailing and residential address in Arizona and counsel advised
Plaintiff of his scheduled June 24, 2022 deposition. (Id., ¶ 4, Exh. B.)
On June 29, 2022, Faaborg’s counsel sent Plaintiff another letter,
memorializing therein that the deposition had been re-set to July 22, 2022,
that the deposition would be conducted remotely, that Plaintiff had been
advised of this fact during a June 23, 2022 telephone call from Faaborg’s
counsel’s office, that Plaintiff had confirmed his availability on July 22,
2022, that Plaintiff has represented that he was not familiar with Zoom and not
technically proficient to download the Zoom application but was willing to
travel back to California for same and that Plaintiff would be have the option
to attend in person. (Id., ¶ Exh. C.) On July 1, 2022, Faaborg
mail-served an “Amended Notice of Taking the Deposition of Plaintiff Ricardo
Olivas,” scheduling Plaintiff’s deposition for July 22, 2022. (Id., ¶ 6,
Exh. D.) A Certificate of Nonappearance was taken on July 22, 2022. (Id.,
¶ 7, Exh. E.) Faaborg’s counsel attempted to contact Plaintiff on July 22, 2022
to inquire as to the nonappearance, but Plaintiff did not answer or return the
call. (Id., ¶ 8.) Faaborg’s counsel again unsuccessfully tried calling
Plaintiff the following week and on September 1, 2022 before filing the instant
motion to inquire about the nonappearance. (Id.)
The motion is granted. Plaintiff is to submit to his deposition
within 30 days from the date of the notice of ruling. Plaintiff may appear
remotely.
Sanctions
Faaborg seeks sanctions against
Plaintiff in the amount of $1,548.60 [calculated as follows: 3.5 hours
preparing motion and declaration, plus 1 hour preparing reply, plus 1 hour
attending hearing at $170.00/hour, plus $60.00 filing fee, plus $553.60
deposition costs].
Utilizing a Lodestar approach, and
in view of the totality of the circumstances, the court finds that the total
and reasonable amount of attorney’s fees and costs incurred for the work
performed in connection with the pending motion is $953.60 (i.e., 2 hours at
$170.00/hour, plus $60.00 filing fee, plus $553.60 deposition costs). Sanctions
are payable within 30 days from the date of the notice of ruling.
5. FMC’s and Will Tiesiera’s Motion for Sanctions vs.
Plaintiff Ricardo Olivas
Legal Standard
If a party fails to comply with a court order compelling
discovery responses or attendance at a deposition, the court may impose monetary,
issue, evidence, or terminating sanctions. (Code Civ. Proc., § 2025.450, subd.
(h) [depositions]; § 2030.290, subd. (c) [interrogatories]; § 2031.300, subd.
(c) [demands for production of documents].)
Code of Civil Procedure § 2023.030 provides, in relevant
part, that, “[t]o the extent authorized by the chapter governing any particular
discovery method. . ., the court, after notice to any affected party, person,
or attorney, and after opportunity for hearing, may impose . . . [monetary,
issue, evidence, or terminating] sanctions against anyone engaging in conduct
that is a misuse of the discovery process . . .”
“The court
may impose a terminating sanction by one of the following orders: (1) An order
striking out the pleadings or parts of the pleadings of any party engaging in
the misuse of the discovery process. . . (3) An order dismissing the action, or
any part of the action, of that
party. . .” (Code
Civ. Proc., § 2023.030, subd. (d).)
“Misuses of
the discovery process include, but are not limited to, the following: . . . (d)
Failing to respond or to submit to an authorized method of discovery. . . (g)
Disobeying a court order to provide discovery . . .” (Code Civ. Proc., §
2023.010.)
A prerequisite to the imposition of the dismissal sanction
is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005)
128 Cal.App.4th 262, 279-280; Laguna Auto
Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 disapproved of
on other grounds in Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, fn. 4.; Young
v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “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.” (Young, supra, 212 Cal.App.3d at 118-119
[internal quotations and citation omitted].) “Preventing parties from
presenting their cases on the merits is a drastic measure; terminating
sanctions should only be ordered when there has been previous
noncompliance with a rule or order and it appears a less
severe sanction would not be effective.”
(Link v. Cater (1998) 60
Cal.App.4th 1315, 1326 [quotation marks and citation omitted].)
Discussion
FMC and Will Tiesiera move the court for an order imposing
terminating, issue, evidentiary and/or monetary sanctions (i.e., in the amount
of $2,055.00) against Plaintiff Ricardo Olivas (“Plaintiff”) for Plaintiff’s failure
to comply with this court’s August 3, 2022 order.
Procedural Deficiencies
FMC’s and Will Tiesiera’s motion is not accompanied by a
California Rules of Court (“CRC”) Rule 3.1345 separate statement (i.e., “[A]ny
motion involving the content of a discovery request or the responses to such a
request must be accompanied by a separate statement. The motions that
require a separate statement include a motion: . . . (7) For issue or
evidentiary sanctions” [emphasis added]).
FMC’s and Will Tiesiera’s request for issue or evidentiary
sanctions, then, is summarily denied.
Merits
FMC’s
and Will Tiesiera’s counsel Katharine H. Adams (“Adams”) represents as follows:
On June 10, 2021, FMC and Will Tiesiera served its Form and Special
Interrogatories and Request for Production of Documents, Set No. One on
Plaintiff’s then-counsel of record by mail. (Adams Decl., ¶ 2.) After ten
extensions, Plaintiff failed to timely respond to the aforesaid discovery. (Id.,
¶ 3). On July 7, 2022, FMC and Will Tiesiera filed three motions to compel. (Id.,
¶ 4.) Plaintiff did not oppose the motions or appear at the hearing on August
3, 2022. (Id.) On August 3, 2022, the court granted the motions and
ordered Plaintiff to provide verified responses, without objections, within 45
days after the date of the order. (Id., ¶ 5, Exh. A.) On August 4, 2023,
FMC and Will Tiesiera filed (and served Plaintiff via mail) a “Notice of Ruling
on Defendants Ford Motor Company and Will Tiesiera Ford, Inc.’s Motions to
Compel Plaintiff Ricardo Olivas’ Responses,” advising Plaintiff therein that
responses were due by September 19, 2022. (Id.) Plaintiff did not serve
responses by September 19, 2022, or at all. (Id., ¶ 6.) On September 26,
2022, Adams sent Plaintiff a letter, informing him of his failure to comply
with the court’s August 3, 2022 order and requesting that he provide verified
responses, without objections, by October 4, 2022. (Id., ¶ 7, Exh. B.)
Plaintiff did not respond to the aforesaid letter or provide responses. (Id.,
¶ 7.)
Based on the above recitation, it is evident that Plaintiff
has failed to comply with the court’s August 3, 2022 order. Again, Plaintiff
was mail-served with a Notice of Ruling on August 4, 2022 as well as with a
letter dated September 26, 2022 from FMC’s and Will Tiesiera’s counsel
requesting compliance by October 4, 2022. The court determines that Plaintiff’s
failure to comply with the above order amounts to willful disobedience.
Although terminating sanctions are a harsh penalty, the above evidence suggests
that Plaintiff’s compliance with the court’s order cannot be achieved through
lesser sanctions.
The motion for terminating sanctions, then, is granted.
The court declines to award any additional sanctions.