Poredos v. Park West Family Partnership

Filed 3/9/07 Poredos v. Park West Family Partnership CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Paul Flynn, Judge. Affirmed.

Law Offices of Michael W. Weinstock, Michael W. Weinstock, Jeff Bonelli for Plaintiff and Appellant.

Musick, Peeler & Garrett, William A. Bossen, Cameron W. Thomas for Defendants and Respondents.

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Plaintiff Rudolf Poredos appeals following an order of dismissal for failure to diligently prosecute his case against defendant Park West Family Partnership (and related defendants, collectively referred to as Park West). Contrary to Poredoss contentions, the record read in its proper context does not establish that the trial court thought it had no choice but to grant the motion for terminating sanctions, and the court did not abuse its broad discretion in dismissing the action rather than imposing some lesser sanction.

FACTUAL AND PROCEDURAL SUMMARY

On October 20, 2004, Poredos filed a complaint for negligent maintenance of property, breach of warranty of habitability, and related causes of action based on alleged exposure to toxic mold from a leak in the apartment he rented from Park West. Poredos was at that time a 74-year-old man with a host of physical ailments. After preliminary written discovery, Park West deemed Poredoss claims meritless, and attempted to negotiate a settlement to avoid the expense of further discovery, a summary judgment motion, and a trial that was scheduled for May of 2006. In September of 2005, Poredos refused to accept his attorneys recommendation to settle.

Park West then attempted to depose Poredos to complete the discovery necessary for a summary judgment motion. On September 28, 2005, Park West served notice of Poredoss deposition and request for the production of documents, scheduling the deposition and production for October 24. On October 5, Poredoss trial attorney moved to be relieved as counsel because the client made it unreasonably difficult for him to effectively carry out his employment.

Shortly before the scheduled date for Poredoss deposition, his trial attorney indicated that Poredos would not appear in view of counsels pending motion to withdraw. Counsel for Park West agreed to reschedule the deposition following the hearing on the motion to withdraw. On November 22, the court granted the motion to be relieved. On November 28, 2005, Park West served a second notice of deposition, scheduling it for December 13. On that date, Poredos appeared, but he refused to proceed with his deposition because he claimed he was ill.

Park West again agreed to continue the deposition and served notice of Poredoss deposition for January 3, 2006. On December 30, 2005, Poredos contacted counsel for Park West and indicated that he would not appear for that deposition either. Poredos served no written objections to the notice of deposition and admitted he was physically able to proceed, but indicated that he would not appear for the deposition because he was still attempting to obtain new counsel. When Poredos repeatedly refused the request by counsel for Park West to appear at the noticed deposition, counsel advised him that Park West would file a motion to compel him to appear at a deposition and to produce documents.

On January 6, 2006, Park West filed such a motion to compel, but it did not seek monetary sanctions. Poredos filed no opposition to the motion, did not contact the court, and did not appear for the hearing on the motion. On February 16, the trial court granted the motion to compel, and ordered Poredos to appear and produce specified documents for his deposition on February 22 at the law offices of counsel for Park West.

On February 22, 2006, counsel for Park West was prepared to take Poredoss deposition. However, Poredos did not appear for his deposition and did not contact opposing counsel to request a continuance. The court reporter then prepared an affidavit of nonappearance.

On March 1, 2006, counsel for Park West filed and served a motion for terminating sanctions for Poredoss failure to comply with a court order. At the hearing on the motion on March 30, Poredos appeared and stated that he was acting as my own lawyer. At the outset, the court stated as follows: Okay. Mr. Poredos, you havent appeared for your deposition. Youve had ample opportunities to present your arguments to me as to why you couldnt do it. You failed to file an opposition to the motion to compel with respect to this dismissal motion, and I think my hands are tied. Im going to grant the motion for terminating sanctions. You just have basically abandoned your case.

Poredos responded by asserting that he was very sick for the last three months, and that he was still sick but forced himself to come to court now. Poredos also claimed that he wrote a letter or phoned opposing counsel whenever he was to appear, though the last letter of apology was returned to him in the mail and some letters came a few days late. The court reiterated a brief procedural history of the case and emphasized, You have failed to appear so many times. I think were through here.

The court then admonished Poredos as follows: When you file a lawsuit, youve got to pursue it or have somebody pursue it for you. You dropped the ball. Youre going to do whatever you want to do, but this case is over. Im granting the motion for terminating sanctions. I have an order, and I will vacate the final status conference of May 5th and the trial of May 15th. Those dates are vacated. And I will sign the order. After requesting that opposing counsel give the required notice, Poredos inquired if he could ask the court a question, to which the court stated, Were through. My hands are tied now.

DISCUSSION

I. General principles regarding dismissal as a sanction for discovery abuse

If a party fails to obey an order compelling attendance and testimony at a deposition, the court may impose a terminating sanction. (Code Civ. Proc.,  2025.480, subd. (g); see also  2025.280, subd. (a), 2023.010, subds. (d) & (g).) Numerous factors may be considered in determining whether dismissal is an appropriate sanction for discovery abuses (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797), and the ultimate sanction of dismissal is appropriate where the litigant persists in refusing to comply with his discovery obligations. (Id. at p. 797.)

We acknowledge that discovery sanctions are not designed to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits. (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303.) Furthermore, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 793.) The ultimate sanction of dismissal is ordinarily a drastic measure which should be employed with caution. (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.)
Nonetheless, the power of a trial court to apply the ultimate sanction of default against a litigant who persists in an outright refusal to comply with his discovery obligations has been consistently upheld. [Citations.] [] The ratio decidendi behind such cases appears to be the theory that a persistent refusal to comply with an order for the production of evidence is tantamount to an admission that the disobedient party really has no meritorious claim . . . . (Kahn v. Kahn (1977) 68 Cal.App.3d 372, 382.) The question on appeal is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.)

II. The trial court exercised its broad discretion in imposing a terminating sanction.

Poredos contends that the trial court abused its discretion in granting terminating sanctions because it did not exercise any discretion at all, since it based its ruling on improper criteria and incorrect legal assumptions. The basis for such a contention is the trial courts remark at the commencement of the proceedings that I think my hands are tied, and its concluding statement that My hands are tied now.

It is well settled that a trial courts ruling, otherwise within its power and the exercise of its broad discretion, will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. (People v.Penoli (1996) 46 Cal.App.4th 298, 302.) Thus, for example, a trial courts adherence to its self-described standard practice of requiring, as a condition of probation, a waiver of credit by defendants, rather than a case-specific application of sentencing discretion, amounts to the failure to exercise discretion. (Id. at p. 303.) Similarly, after a default judgment when defendants fail to appear at trial because of what the trial court deems a stall tactic, the trial court errs in failing to exercise its discretion when it grants relief from default based on [a]bdication to some imagined appellate compulsion to grant relief. (Gardner v. Superior Court (1986) 182 Cal.App.3d 335, 338, 339.) In such situations, the trial court fails to exercise its discretion because it fails to apply relevant legal principles (see Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 815), and there is, in effect, no discretion exercised by the trial court to which the appellate court can defer.

Here, however, the trial courts comments did not indicate any failure to exercise discretion. Viewed in its proper context, it is apparent that the courts remark at the outset of the hearing that I think my hands are tied did not reveal any failure to exercise discretion. Rather, the remark meant simply that under the particular circumstances of the case, the details of which the court reiterated and characterized as Poredoss having basically abandoned [his] case, terminating sanctions were appropriate. Thus, the trial court did not abdicate its power to exercise discretion, either by stating an inflexible pre-existing policy, by deferring to some imagined appellate compulsion, or by failing to apply relevant legal principles. Instead, the trial court was aware of the applicable law and was persuaded by the particular facts of the case before it.

Nor is any failure to exercise discretion revealed by the trial courts final statement at the hearing, Were through. My hands are tied now. That statement was made after opposing counsel stated he would give notice of the ruling, and Poredos apparently wanted to ask the court something more about the case. At that point, as the court correctly noted, the case was over and, in that sense, its hands were tied.

III. The terminating sanction was not improperly excessive under the circumstances.

Equally unavailing is Poredoss related contention that the trial courts decision to order a terminating sanction improperly exceeded the response necessary to protect Park Wests entitlement to discovery. It is well settled that the purpose of discovery sanctions is not to impose punishment (Motown Record Corp.v. Superior Court (1984) 155 Cal.App.3d 482, 489), and that discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 793.) However, there need not be prior, lesser sanctions before an ultimate sanction is imposed (Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520, 524), and the trial courts broad discretionary power to impose sanctions will only be reversed upon a showing of abuse of discretion. (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175.)

In the present case, it was not manifestly unreasonable to dismiss the case. Although Poredos orally offered an excuse of illness, he submitted no opposition to the motions by Park West with any documentary evidence from a physician. To the extent Poredos was uncomfortable representing himself after his counsel successfully requested to be relieved, Poredos had several months to retain new counsel but did not do so. Poredos simply showed no diligence in prosecuting his action. When served with a notice of his deposition and to provide documents relating to the merits of his claims and to defendants defenses, he fell silent. Poredos repeatedly ignored his discovery obligations until served with the final motion for terminating sanctions. Even then, Poredos filed no written opposition and did not make himself available for a deposition.

Accordingly, in view of all the circumstances, including Poredoss undisputed disobedience of a properly served discovery order, the trial courts ruling was not arbitrary or capricious. The trial court acted within the exercise of its broad discretion in dismissing the case. (See Hartbrodt v. Burke, supra, 42 Cal.App.4th at p. 175.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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