Case Number: BC617260 Hearing Date: January 30, 2019 Dept: 4B
[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
On April 15, 2016, Plaintiffs Jose Vivian (“Plaintiff”) and Jose Gonzalez filed this action against Defendants Peter Jonathan Petiti (“Defendant”), Francisco Quiroz-Damian, and Hip Hop Beverage Company (“Defendant”) for negligence and negligence per se relating to an April 17, 2014 automobile accident. Bob B. Khakshooy filed the Complaint on behalf of Plaintiffs. On May 17, 2018, BB Law Group filed an Association of Counsel for Plaintiffs.
Defendant contends it has been attempting to depose Plaintiff for nine months. (Declaration of Glen H. Mertens, ¶ 3.) On November 29, 2018, the parties submitted a stipulation and proposed order that Plaintiff appear for deposition on December 12, 2018. (Mertens Decl., ¶ 7.) On December 11, 2018, BB Law Group advised defense counsel that due to a conflict of interest, they would no longer be representing Plaintiff. BB Law Group stated Plaintiff who would be temporarily self-represented while seeking new counsel. (Mertens Decl., ¶ 8.) Plaintiff did not appear for deposition on December 12, 2018, and Defendant moves for terminating sanctions.
Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code Civ. Proc., § 2023.030, subd. (d)(3).)
The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)
Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)
Khakshooy declares BB Law Group took the lead on the day-to-day litigation of this case. (Declaration of Bob B. Khakshooy, ¶ 2.) He states that on December 11, BB Law Group realized that it and Khakshooy had a conflict of interest that would prevent further representation of Plaintiff. (Khakshooy Decl., ¶ 3.) But Khakshooy’s name was left off the substitution of attorney form and he remained Plaintiff’s attorney of record. (Khakshooy Decl., ¶ 4.) However, he states Plaintiff has found new counsel who cannot begin work on this case until this motion for terminating sanctions is resolved and a substitution of attorney filed. (Khakshooy Decl., ¶ 7.) On December 16, 2019, the same day Plaintiff filed an opposition to the motion for sanctions, Khakshoov filed a substitution of counsel substituting out, with Plaintiff Jose Vivian now representing himself. Khakshoov is still counsel of record for Plaintiff Jose Gonzalez.
Terminating sanctions and evidentiary sanctions are not warranted, as it does not appear Plaintiff willfully violated court orders or misused the discovery process. The Court is unaware of anything that prevents Plaintiff’s new attorney from filing a substitution of attorney, handling this motion, and making an offer of proof to the Court that Plaintiff will promptly appear for deposition, there will not be further delay, and evidentiary and terminating sanctions are not warranted. Further, Khakshooy was responsible until January 16, 2019 as attorney of record to prevent undue delay and comply with court orders.
The motion for terminating sanctions is DENIED but the request for monetary sanctions is GRANTED and imposed against Plaintiff Jose Vivian and then counsel of record, Khakshooy, jointly and severally, in the reduced amount of $1,185.00 for three hours at defense counsel’s hourly rate plus the filing fee, to be paid within twenty (20) days of the date of this Order. Further, trial is set for February 28, 2019. Plaintiff remains subject to the December 5, 2018 stipulated order and must appear for a deposition pursuant to that order, or risk further sanctions.
Moving party to give notice.