Motion for Terminating Sanctions – GRANTED
The unopposed motion of defendants National Oilwell Varco, L.P., Gordon Robison, Mary Davis, and Mark Thomas for terminating sanctions against plaintiff Millands Sasu is granted.
If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just [CCP 2031.300(c)], including any of the following:
- Issue sanctions?ordering that designated facts be ?taken as established? against the party guilty of discovery misuse [Code Civ. Proc. ? 2023.030(b)];
- Evidence sanctions?prohibiting the party guilty of discovery misuse from introducing designated matters in evidence [Code Civ. Proc. ? 2023.030(c)];
- Terminating (?doomsday?) sanctions?striking pleadings, in whole or in part; or dismissing that party?s action, in whole or in part; or staying further proceedings by that party until the order is obeyed; or rendering default judgment against that party [Code Civ. Proc. ? 2023.030(d)]; and
- Money sanctions?in addition to or in lieu of any other sanction, an award of reasonable costs and fees incurred as a result of the failure to obey (including fees on the sanctions motion) [Code Civ. Proc. ?? 2023.030(a); 2030.300(e); Civil Procedure Before Trial ? 8:1205].
The trial court should tailor the sanction for such conduct to ?fit the crime.?? Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1293.?? Before issuing terminating sanctions, the court should usually grant lesser sanctions such as orders staying the action until the derelict party complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party.? Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th at 99; Civil Procedure before Trial ? 8:1215.? It is only when a party persists in disobeying the court?s orders that the ultimate sanctions of dismissing the action or entering default judgment, etc. are justified. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771.
Plaintiff has now twice refused to comply with Court orders compelling him to appear for the conclusion of his deposition.? The Court entered a Minute Order on 6/27/16 ordering Plaintiff to appear for deposition on July 13, 2016.? He failed to appear.? On 9/19/16 the Court again ordered Plaintiff to appear for his deposition, this time on or before October 7, 2016.? That Minute Order cautioned Plaintiff of the consequences of a further refusal to comply:? ?[A]lthough the Court is effectively giving Plaintiff a second opportunity to comply with the Court?s order to appear for the continuation and conclusion of his deposition, the Court cautions Plaintiff that a further violation of the Court?s orders to appear for deposition (1) will be interpreted by the Court as evidence that a lesser sanction is not sufficient to achieve compliance with the Court?s order; and (b) will likely result in a more severe sanction being imposed by the Court, including an order dismissing Plaintiff?s action in its entirety.?? (emphasis original)? Again, Plaintiff failed to appear.
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In sum, Defendants have shown the existence of both Court orders compelling appearance by Plaintiff, notice to him of those orders, and his persistent failure to comply.? Further, the Court attempted lesser sanctions ? accompanied by an explicit warning to Plaintiff ? but Plaintiff continues to fail to comply and continues fail to respond to Defendants? attempts to communicate.
At this point, the Court can only conclude that Plaintiff has abandoned his obligations as a litigant and that no lesser sanctions will obtain his compliance with the Court?s orders or otherwise ameliorate the situation.
Accordingly, the motion for terminating sanctions is granted.? This action is dismissed.