Rodriguez v. County of San Bernadino

Filed 6/17/08 Rodriguez v. County of San Bernadino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kenneth Barr, Judge. Affirmed.

Law Offices of Jance M. Weberman and Jance M. Weberman for Plaintiff and Appellant.

Ruth E. Stringer, County Counsel, and James H. Thebeau, Deputy County Counsel, for Defendants and Respondents.

After several unsuccessful attempts to depose Jesus Rodriguez (Rodriguez), the plaintiff in an action against the County of San Bernardino, the San Bernardino Sheriffs Department and two individual sheriffs deputies, the trial court issued an order compelling him to comply with discovery. When that failed, a motion for terminating sanctions was filed and granted. Rodriguez appeals from the order granting the terminating sanctions, dismissing his complaint with prejudice.^[1] We affirm.

1. Background

Rodriguez filed a complaint against San Bernardino County, the San Bernardino Sheriffs Department, and two sheriffs deputies (referred to collectively as the County) for damages due to the theft of tools and equipment from his truck, which was left, unlocked, on the Interstate 10 Freeway. The complaint alleged Rodriguezs brothers were driving the truck on the freeway when they were unlawfully stopped by the sheriffs deputies. Further, it was alleged that the truck was illegally searched and his brothers were arrested on drug-related charges. Criminal proceedings against the brothers resulted in convictions as to both brothers. The theory of liability was that the County and the sheriffs department breached their duty to exercise care by leaving the vehicle unlocked on the freeway, permitting it to be stolen, which resulted in the loss of items of personal property.

On April 15, 2005, county counsel noticed Rodriguezs deposition for May 2, 2005. On April 20, 2005, Rodriguezs attorney served an Objection to Deposition Notice of Rodriguez, informing the county that Rodriguez was the subject of a criminal investigation and invoked his right to remain silent. On May 11, 2005, civil proceedings were temporarily stayed pending the outcome of the criminal proceedings involving Rodriguezs brothers; following their convictions, civil proceedings were reinstated on May 25, 2006.

On August 24, 2006, after the stay was lifted, the County noticed Rodriguezs deposition for the second time. However, on September 13, 2006, the day before the scheduled deposition, Rodriguezs attorney faxed a letter to county counsel stating we are not available for the deposition . . . .

On September 18, 2006, the County served a notice that Rodriguezs deposition had been continued to September 25, 2006, the third time an attempt was made to take his testimony. On September 22, 2006, county counsel contacted Rodriguezs attorneys office to confirm the deposition. County counsel was informed he would be there and that he would require an interpreter.

On September 25, 2006, Rodriguez failed to appear, although one of his brothers appeared. On September 27, 2006, county counsel made a fourth attempt to conduct Rodriguezs deposition by serving a third notice of continuance of the matter. The deposition was confirmed by phone, a call in which Rodriguezs attorney reminded county counsel of the need for an interpreter. However, Rodriguez failed to appear at his deposition once more. Contradictory explanations were given for Rodriguezs absence at the time of the deposition, and a week later, Rodriguezs attorney informed the County that Rodriguez showed up late.^[2]

In the meantime, county counsel incurred expenses for an interpreter who showed up twice to translate for Rodriguez at separate deposition dates, as well as for the court reporters. On November 13, 2006, county counsel filed a motion to compel Rodriguezs deposition. On December 7, 2006, the trial court granted the unopposed motion, compelling the deposition of Rodriguez and imposing monetary sanctions in the amount of $1,200. No appeal was taken from this order.

County counsel noticed a last attempted deposition of Rodriguez for January 3, 2007. The notice was served on December 13, 2006. On December 29, 2006, county counsel contacted Rodriguezs counsel as a reminder of the upcoming deposition, and was informed that Rodriguez would not be there because his attorney would be in trial. Rodriguezs counsel then faxed a letter to county counsel, explaining that Rodriguezs counsel had a pretrial conference scheduled on January 3, 2007, with trial set to begin on January 4, 2007. On January 3, 2007, neither Rodriguez nor his attorney appeared at the scheduled deposition.

On January 8, 2007, county counsel served a motion for terminating sanctions based on the failure to comply with the order compelling Rodriguezs deposition. On January 12, 2007, after hearing on the merits of the motion, the court granted an order for terminating sanctions, entering judgment against Rodriguez, dismissing the complaint with prejudice, entering judgment in favor of the County, and imposing additional monetary sanctions in the amount of $997. Notice of entry of the judgment was issued on February 14, 2007, and Rodriguez appealed.

2. Discussion

Rodriguez appeals from the dismissal, with prejudice, of his action against the County. He argues that the trial court abused its discretion in ordering terminating sanctions because his failure to be deposed was not willful. He also argues the court failed to establish a proper record for dismissal. We disagree and affirm.

A court has broad discretion to impose sanctions to compel discovery, impose monetary sanctions, or issue sanctions, evidence sanctions, or terminating sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., 2030.030; Michaely v. Michaely (2007) 150 Cal.App.4th 802, 809.) A judgment entered following a grant of a terminating sanction is subject to reversal only for manifest abuse of that discretion. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388.)

Under the provisions of the former Code of Civil Procedure section 2034, subdivision (d), only two facts were prerequisite to imposition of the terminating sanction: (1) there must be a failure to comply, and (2) the failure must be willful. (See, Do It Urself Moving & Storage, Inc. v. Brown (1992) 7 Cal.App.4th 27, 36.) However, the 1986 Civil Discovery Act repealed that code section, and replaced it with the new statute, which eliminated the word willful. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291.) Currently, the court may impose sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., 2023.030.)

A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)

Rodriguez refused to have his deposition taken despite five separate attempts to do so. On more than one occasion, Rodriguez simply failed to show up after his appearance had been confirmed by his attorney. His last failure to appear occurred after the trial court had issued an order compelling his participation, along with monetary sanctions. His attorneys belated explanation that he had a pretrial conference scheduled for the same day, for which we have his word only, since the record does not include copies of any orders for his appearance or notices of hearing dates, does not pass muster given the pattern of discovery abuses that had been established. In fact, the record of discovery abuse would support a finding of willfulness, if such a finding were required. There was no abuse of discretion in granting the Countys motion.

Rodriguezs argument that the court failed to establish a proper record for dismissal lacks merit. The trial court properly relied on Code of Civil Procedure, section 2030.030, which affords all the authority needed to impose the sanction of dismissal. Misuse of the discovery process includes, but is not limited to, a partys failure to respond or to submit to an authorized method of discovery. (Code Civ. Proc., 2023.010, subd.(d).) Rodriguez failed to submit to a deposition even after the court issued an order compelling him to do so. He misused the discovery process.

Rodriguez complains that the court miscited a nonexistent statute, Code of Civil Procedure section 2020.450, subdivision (d), as a basis for the terminating sanction along with his reliance on Code of Civil Procedure section 2030.030. The courts comments at the hearing are irrelevant where the court properly imposed the sanction. We review the judgment, not the reasoning of the court below. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) A judges comments during oral argument at a hearing may not be used to impeach the final order, however valuable they may be to illustrate the courts theory under some circumstances. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633.)

Finally, Rodriguez complains that the court erred in not imposing the least drastic sanction, citing Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1399. That case is inapposite. In Maldonado,the deponents appeared but gave inadequate responses to certain questions. The parties conducting the depositions brought a motion to compel further responses and production of documents, which the trial court denied. In a mandamus proceeding, the Court of Appeal vacated the order denying the motion to compel and directed the trial court to conduct further proceedings on the issue of whether a monetary sanction should be imposed in addition to the order compelling further responses. (Ibid.) The reviewing court expressly recognized that in cases involving repeated and willful refusals to permit discovery, more serious sanctions may be imposed, even where no specific order has been violated. (Ibid.) The court did not err in imposing the terminating sanctions.

Respondent County requests attorneys fees as sanctions for a frivolous appeal. Attorneys fees may not be awarded without statutory or other specific authority.

The trial court did not abuse its discretion.

3. Disposition

The judgment is affirmed. Rodriguez is ordered to pay the costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/King

J.

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^[1] He does not challenge the imposition of monetary sanctions.

^[2] Counsel for both parties waited from 10:00 to 11:20 a.m. before they agreed to reschedule again.