Case Number: BC564599??? Hearing Date: May 05, 2016??? Dept: 97
20
JOSEPH ALFI,
Plaintiff,
v.
HENERY WONG D.D.S., et al.,
Defendants.
Case No.: BC564599
Hearing Date: May 5, 2016
MOTION FOR TERMINATING, ISSUE, EVIDENCE, AND
MONETARY SANCTIONS
Defendant Joseph Rosenberg, D.D.S., (?Defendant?) seeks terminating, issue, evidence, and monetary sanctions against Plaintiff Joseph Alfi (?Plaintiff?).
On January 22, 2016, this Court heard and granted Defendant?s discovery motion. The Court ordered Plaintiff to appear for deposition at a mutually convenient time within twenty days of notice of the Court?s order and to pay monetary sanctions in the amount of $1540.
Plaintiff was served with notice of the Court?s January 22, 2016, ruling on January 22, 2016. Plaintiff failed to attend his deposition within 20 days of being provided notice of the Court?s order. In Reply, Defendant states that on January 27, 2016, Defense Counsel left a message for Plaintiff?s counsel requesting a discussion regarding Plaintiff?s deposition per the January 22, 2016, order.
In Opposition, Plaintiff argues that (1) Plaintiff is not in violation of the Court?s order as Defendant was required to communicate with Plaintiff in order to set Plaintiff?s deposition and failed to do so, and (2) Defendant?s request for terminating sanctions on the ground that the prior sanctions were not paid is without merit.
With respect to the second, argument, the Court finds that Plaintiff?s argument is well taken, however, Defendant is also moving for sanctions based on Plaintiff?s noncompliance with the Court?s order to appear for deposition. The Court has authority to grant Defendant?s request on this ground alone.
With respect to Plaintiff?s first argument, the Court finds that Defendant did in fact attempt to reach out to Plaintiff?s Counsel via telephone on January 27, 2016. There is no evidence that Plaintiff?s Counsel ever responded to Defendant?s January 27, 2016, communication. Furthermore, there was no requirement that Defendant re-notice Plaintiff?s deposition; the Court?s order was sufficient to compel Plaintiff to attend his deposition.
Failing to respond to an authorized method of discovery and disobeying a court order both constitute conduct that is subject to sanctions. (CCP ?2023.010(d), (g) and ?2023.030.) However, ultimate discovery sanctions are only justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)
In light of the Plaintiff?s Counsel?s correspondences stating that Plaintiff is amenable and available to have his deposition taken, there is no reason to believe that Plaintiff has willfully refused to comply with the Court?s order. It appears that Plaintiff?s noncompliance with the Court?s January 22, 2016, order was likely caused by Plaintiff?s Counsel?s neglect. Therefore, Defendants? request for terminating, issue, and evidence sanctions is denied as lesser sanctions are likely sufficient to produce compliance. The Court further finds that lesser sanctions are warranted against Plaintiffs? counsel only.
Plaintiff?s attorney of record is ordered to pay monetary sanctions in the amount of $960.00 to Defendant, by and through counsel, within twenty days of notice of this order. Plaintiff?s request for monetary sanctions is denied.
Defendant is ordered to provide notice of this order.