Nature of Proceedings: Terminating Sanctions

Tentative Ruling: The court grants, in part, the motion of plaintiff and cross-defendants Tine F. Sloan, Michael Corrigan, and Michael Conner for terminating sanctions or other discovery sanctions. The court orders as follows: Plaintiff/cross-complainant, Gregg Patronyk shall attend his deposition on a date and time and at a place determined at the hearing on the motion; Patronyk waives any objection to production of documents listed in the Sixth Amended Notice of Taking Deposition and Request for Production; no further notice of the deposition will be required unless Patronyk’s counsel fails to appear at the hearing, in which case written notice shall be mailed and electronically served at least 10 days before the deposition date. The deposition date can only be changed by agreement of counsel or a motion for protective order. Gregg Patronyk shall pay the law firm of Hager & Dowling a monetary sanction in the amount of $3,500 on or before April 20, 2018.

 

Background: On December 1, 2017, the court entered its order granting the motion of plaintiff/cross-defendant Tine F. Sloan and cross-defendant Michael Corrigan to compel the deposition of defendant/cross-complainant Gregg Patronyk. The court ordered the parties to meet and confer with Patronyk and counsel for cross-defendants Axilrod as to the date of deposition; Patronyk was to provide five dates he was available for a deposition between November 30 and December 31, 2107; and, if Patronyk was unable to attend a deposition because of a medical condition, he was required to make a motion for protective order.

Motion: Sloan, Corrigan, and cross-defendant Michael Conner (for purposes of this motion “Sloan”) move for terminating sanctions or, in the alternative, a further order for Patronyk to appear for deposition together with discovery and monetary sanctions. Cross-defendants Richard Steven Axilrod and Joyce Axilrod join in the motion. Patronyk opposes the motion, indicating the failure to appear for his deposition was not willful.

1. Facts: Since the court’s order of December 1, the following occurred: Patronyk provided his available dates: December 25, 26, 27, 29, and 30. December 25 is a well known holiday and December 30 was a Saturday. Those dates did not work for counsel for Sloan, Thomas Dowling, who, on December 13, 2017, noticed the deposition for January 9, 2018, which notice included a request for production of 36 categories of documents. [Dowling Dec. ¶8, Exh. B] On December 15, Paul Sweeney substituted into the case as counsel for Patronyk. [Dowling Dec. ¶9] On December 28, Sweeney emailed Dowling informing him: “Yesterday through early this morning, Mr. Patronyk was at the hospital dealing with a condition that is usually considered quite painful. I don’t have details yet.” He acknowledged that Dowling requested copies of documents by January 2, but said that because of the “latest emergency” and the January 1 holiday, “my feeling is that will not happen by 2 January.” [Dowling Dec. ¶10, Exh. C]

No documents were produced on January 8 as previously agreed. Sweeney confirmed the January 9 deposition. [Dowling Dec. ¶11] Early on January 9, a debris flow closed the 101 freeway. Dowling rescheduled the deposition for January 10. He then re-noticed the deposition for January 16. [Dowling Dec. ¶12] (The court takes judicial notice that the 101 freeway was closed until approximately noon on January 21, 2018.) On January 11, Sweeney emailed Dowling stating that Patronyk had friends and colleagues who were missing or were killed as a result of the Montecito mudslides. He said friends and extended family members were on their way to Santa Barbara. He informed Dowling that Patronyk was unavailable for a deposition until February 13-16, 19, and 21-28. [Dowling Dec. ¶13, Exh. E]

On January 18, Dowling unilaterally selected a deposition date and noticed a February 1 deposition. [Dowling Dec. ¶14, Exh. F; Sweeney Dec. 1:5-7] Because a client and co-counsel were not available, Dowling served a sixth amended notice of taking Patronyk’s deposition, noticing a February 15 date. [Dowling Dec. ¶15, Exh. G]

On February 13, 2018, Sweeney emailed to say Patronyk was willing to appear on February 15 but Sweeney was not because of a health risk. He wrote: “I can provide more detail, if Mr. Patronyk authorizes me to do so; I can’t do that without violating attorney-client privilege. I’m waiting to hear from Mr. Patronyk, at which time I’ll know if I can provide more detail.” [Dowling Dec. ¶16, Exh. H] The following day, Sweeney emailed Dowling and said he had not heard from Patronyk, Patronyk might show up by himself, it would be inappropriate to proceed with the deposition without Patronyk’s counsel, and the deposition needed to be rescheduled at least seven to ten days out when the health risk had passed. He said he still could not provide more information about the health risk. [Dowling Dec. ¶17, Exh. I]

2. Analysis: When a party fails to obey an order compelling attendance at a deposition, the court may impose an issue sanction, an evidence sanction, a terminating sanction, or, in addition to or in lieu thereof, a monetary sanction. CCP § 2025.450(h).

“The decision whether to exercise the inherent power to dismiss requires consideration of all relevant circumstances, including the nature of the misconduct (which must be deliberate and egregious, but may or may not violate a prior court order), the strong preference for adjudicating claims on the merits, the integrity of the court as an institution of justice, the effect of the misconduct on a fair resolution of the case, and the availability of other sanctions to cure the harm.” Stephen Slesinger, Inc. v. Walt Disney Co., 155 Cal.App.4th 736, 764 (2007). “[W]hen the plaintiff has engaged in misconduct during the course of the litigation that is deliberate, that is egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of the trial, the trial court has the inherent power to dismiss the action. Such an exercise of inherent authority is essential for every California court to remain a place where justice is judicially administered.” Id. at 764-765. A terminating sanction is justified where a violation is willful, it is preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules. Mileikowsky v. Tenet Healthsystem, 128 Cal.App.4th 262, 279–80 (2005).

A sanction order cannot go further than is necessary to accomplish the purpose of discovery – a rule rooted in constitutional due process. Newland v. Superior Court, 40 Cal.App.4th 608, 613 (1995). “The purpose of the discovery statutes is to enable a party to obtain evidence under the control of his adversary in order to further the efficient and economical disposition of a lawsuit.” Deyo v. Kilbourne, 84 Cal.App.3d 771, 793 (1978). “Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have [been in] if he had obtained the discovery sought and it had been completely favorable to his cause.” Id. “Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court’s authority cannot be vindicated through the imposition of a less severe alternative.” Rail Services of America v. State Comp. Ins. Fund, 110 Cal.App.4th 323, 331 (2003). “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” Midwife v. Bernal, 203 Cal.App.3d 57, 64 (1988) [internal quotations and citations omitted].

Patronyk’s behavior since December 1 has been uncooperative at best. He picked a holiday and a Saturday among his five available dates, all of which fell on the Christmas holiday or between that holiday and the New Year’s holiday. His counsel communicated vague health and grievance information. Counsel learned of “health risk” information and used that as the reason to effectively cancel a deposition without getting his client’s authorization to disclose the nature of the risk. Counsel does not explain why he did not get this authorization at the time he learned of the risk, later disclosed as a case of the flu. The health risk was a medical condition—the flu—yet Patronyk did not seek a protective order as expressly required in the court’s order.

On the other hand, a devastating weather event rendered a deposition impossible on a scheduled date and for 12 days thereafter. Sloan’s counsel issued serial deposition notices, not all for agreed dates.

In most instances, the parties agree to a deposition date and sometimes even take the deposition between the filing of a motion and the hearing. Here it appears that no effort has been made to take the deposition in the interim period. The taking of the deposition, not terminating sanctions, should be the paramount goal.

Considering all the circumstances, the court will not issue terminating sanctions. However, the court will order that Patronyk’s deposition to take place on a date certain and that he waives any objection to production of documents listed in the Sixth Amended Notice of Taking Deposition and Request for Production. The court will set the date for a deposition at the hearing so there will be no doubt about when that deposition will occur. No further notice of the deposition will be required unless Patronyk’s counsel fails to appear at the hearing, in which case written notice shall be mailed and electronically served at least 10 days before the deposition date. The deposition date can only be changed by agreement of counsel or a motion for protective order.

It is clear that the court has to issue a second order compelling Patronyk’s deposition because of his failure to comply with the letter and spirit of the court’s December 1, 2017 order. Sloan’s motion was necessary to obtain another order for Patronyk’s deposition. Therefore, the court will impose a monetary sanction in the amount of $3,500. (Sloan’s counsel shall determine how the firm’s representing Sloan share in the award.)

3. Order: The court grants, in part, the motion of plaintiff and cross-defendants Tine F. Sloan, Michael Corrigan, and Michael Conner for terminating sanctions or other discovery sanctions. The court orders as follows: Plaintiff/cross-complainant, Gregg Patronyk shall attend his deposition on a date and time and at a place determined at the hearing on the motion; Patronyk waives any objection to production of documents listed in the Sixth Amended Notice of Taking Deposition and Request for Production; no further notice of the deposition will be required unless Patronyk’s counsel fails to appear at the hearing, in which case written notice shall be mailed and electronically served at least 10 days before the deposition date. The deposition date can only be changed by agreement of counsel or a motion for protective order. Gregg Patronyk shall pay the law firm of Hager & Dowling a monetary sanction in the amount of $3,500 on or before April 20, 2018.

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