JNG v. United States Fire Ins.

Filed 1/17/07  JNG v. United States Fire Ins. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from a judgment of the Superior Court of California, Elizabeth  A. Grimes, Judge.  Affirmed.

            Call, Jensen & Ferrell, David R. Sugden and Melinda Evans for Defendant and Respondent.

            Wallace & Schwartz and George M. Wallace for Plaintiff and Appellant.

INTRODUCTION

            In an action brought by an insurance company for the recovery of premiums that the defendant agent withheld from the insurer, the trial court imposed terminating sanctions against the agent for repeatedly flouting discovery requests and violating a court order to appear for deposition and mediation.  The agent appeals.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            1.  JNG defaults.

            JNG, LLC, doing business as Western Insurance Brokers (JNG), an insurance broker, arranged for insurance coverage from United States Fire Insurance Co. (U.S. Fire) for Merchants Building Maintenance (Merchants).  As  Merchants' broker, JNG forwarded Merchants' payments to U.S. Fire.

            After two audits, U.S. Fire discovered that it had not received $65,000 in premium payments for policies held by Merchants.  U.S. Fire filed suit against JNG in December 2003, alleging unjust enrichment and a common count on open book account.

            John Gurash, JNG's registered agent for service of process, was served at his home with the summons and complaint on January 25, 2004.  JNG never responded to the complaint, and so its default was entered on April 13, 2004.

            Several months later, in July 2004, JNG moved to quash the service of summons and to set aside its default.  Its motion was based on a declaration by Gurash, in which he denied having been served.  Gurash stated he had found the summons and complaint on his doorstep and so they were neither personally delivered to him nor left in the hands of an adult in his office or residence.  The  court set aside the default and JNG filed an answer generally denying the allegations in the complaint.

            2.  U.S. Fire moves to compel Gurash's deposition.

            On December 17, 2004, U.S. Fire sent JNG's counsel a written request for dates on which Gurash was available for deposition.  U.S. Fire also noted it had not received documents in response to its request for production.  JNG's counsel responded that it would confer with Gurash about availability and â€