Case Number: BC632388 Hearing Date: March 20, 2017 Dept: 40

MOVING PARTIES: Defendant Game Show Network, LLC

OPPOSITION: Plaintiff Delia Murillo

MOTIONS: (1) FOR TERMINATING SANCTIONS
(2) TO COMPEL DEPOSITION
(3) REQUEST TO SET OSC RE CONTEMPT
(4) FOR ADDITIONAL MONETARY SANCTIONS

Plaintiff sues defendant for wrongful termination, pregnancy discrimination, and related claims. On August 31, 2016, plaintiff filed a complaint. On January 18, 2017, the Court entered an order pursuant to stipulation that plaintiff shall appear for a deposition on January 23, 2017 and that plaintiff and her counsel pay $578.05 for her nonappearance at a December 20, 2016 deposition within 14 days of January 9, 2017, or by January 23, 2017. Plaintiff appeared for the January 23, 2017 deposition, but brought her infant apparently because of difficulty securing childcare. Also apparently, the infant’s presence was disruptive and caused defendant to suspend the deposition.

On February 7, 2017, defendant filed these combined motions for terminating sanction, to compel plaintiff’s deposition, to set an OSC re contempt, and for additional monetary sanctions.

Insufficient Filing Fees: Government Code section 70617, subdivision (a), clause (4) requires a party to pay a $60 filing fee for discovery motions. Defendant paid only one $60 filing fee. Brown Decl. ¶ 15. The “alternative” motion to compel deposition is actually an independent law and motion proceeding. Therefore, defendant shall pay an additional $60 filing fee.

Motion for Terminating Sanctions: Defendant moves for a terminating sanction for plaintiff’s violation of the order requiring her to appear for deposition on January 23, 2017 and to pay the nonappearance costs.
Generally, the trial court may terminate a party’s action as a 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.” Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.

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. See, e.g., CCP § 2031.300(c) (requests for production of documents); CCP § 2023.030 (interrogatories). The statute provides that the court “may make those orders that are just” if a party fails to obey prior orders. Therefore, which of the various sanctions, if any, are imposed lies entirely within the court’s discretion. Generally, before granting terminating sanctions, courts should usually grant lesser sanctions first. It is only where a party persists in disobeying court orders that the ultimate sanction of dismissing the action or entering default judgment is justified. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771.

Sanctions for failure to comply with a court order are allowed only where the failure was willful. See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Valbona v. Springer (1996) 43 Cal.App.4th 1525. Willfulness does not require a wrongful intention. A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. Deyo, supra, 84 Cal.App.3d at 787. A “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” Id. at 787-788. The party with the obligation to respond to discovery bears the burden of showing that the failure to respond or comply was not willful. Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.

Here, plaintiff’s counsel’s declaration submitted in opposition reiterates his and plaintiff’s agreement to pay the nonappearance costs. Counsel states that he will pay these costs prior to the hearing. Ramos Decl. ¶ 3. Therefore, this aspect of the motion is moot.

Regarding the January 23, 2017 deposition, plaintiff appeared, and the order does not require plaintiff to appear without her child. Therefore, plaintiff has not violated this aspect of the order. Moreover, plaintiff’s counsel’s willingness to pay the fee, representing that plaintiff is willing to appear for a second deposition session for certain dates in March, and communicating to defendant that plaintiff will be involved in a trial until February 1 prior to defendant’s filing these motions establish that plaintiff remains active in litigating this case, making a terminating sanction unwarranted. Ramos Decl. ¶¶ 17, 18, 25, Exh. 4. The motion is DENIED.

Motion to Compel Deposition: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” CCP § 2025.450(a).

The motion must also be accompanied by a declaration showing a reasonable and good faith attempt to informally resolve each issue presented or, when the deponent fails to attend the deposition and produce the requested documents or things, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. CCP § 2025.450(b)(2).

Here, there is no dispute that plaintiff appeared for her deposition on January 23, 2017 or that the parties agreed that plaintiff would appear without her child. Nonetheless, plaintiff brought her child because of trouble securing childcare.

Defendant does not offer authority permitting the Court to compel a deposition under the circumstances: plaintiff appeared, and the order was silent on the issue of her child. Nonetheless, given defendant’s request to compel plaintiff to appear without child on March 22, 2017, plaintiff’s willingness to appear on March 23, 2017, and the parties’ agreement that plaintiff would appear without child, plaintiff is ORDERED to appear without child by March 23, 2017 for her second deposition session. The motion is GRANTED consistent with the above.

OSC re Contempt: Defendant’s request to set an OSC re contempt is DENIED for the same reasons as above. Plaintiff did not violate the order concerning her January 23, 2017 deposition, and her counsel represents that the nonappearance fees will be paid by the time of this hearing.

Sanctions: Defendant requests an additional monetary sanction for bringing these motions under Code of Civil Procedure section 2025.450 concerning motions to compel deposition and section 2030.030 concerning the number of interrogatories a party may propound. MOT 9:4-5.

Under the circumstances, the Court finds that plaintiff acted with substantial justification and is not subject to a monetary sanction under section 2025.450 subdivision (g) and declines to exercise its discretion to award a monetary sanction under section 2025.450 subdivision (h). As mentioned above, plaintiff did not violate the order because she appeared for the deposition, and her counsel represents that the nonappearance costs for the earlier deposition will be paid. Section 2030.030 is obviously inapplicable, so no sanctions are awarded under this section.

Additionally, defendant’s request for $6,000, representing 16 hours’ work on this improperly combined set of motion is excessive because the motions involved no complex issues of law or fact, it is clear that plaintiff did not violate the order concerning her appearance at the January 23, 2017 deposition, and plaintiff’s counsel openly communicated with defendant about plaintiff’s circumstances prior to its bringing these motions. Therefore, defendant’s request for an additional monetary sanction is DENIED.

The motions are DENIED, except that the motion to compel deposition is GRANTED insofar as PLAINTIFF IS ORDERED to appear without child for her second deposition session by March 23, 2017.

DEFENDANT IS ORDERED to pay an additional $60 filing fee.

This ruling and order is ineffective unless and until defendant delivers proof to this Department that the additional filing fee has been paid.

Defendant to give notice.