CHAUNCEY RICHMOND VS GIESEL L RICHMOND ET AL

Tentative Rulings

Case Number: BC670096    Hearing Date: November 22, 2019    Dept: 24

Defendant Giesel Richmond’s motion for monetary sanctions is GRANTED. Plaintiff is ordered to be deposed within five days, at a reasonable time and location.

Plaintiff Chauncey Richmond (“Plaintiff” or “Chauncey”) initiated this suit on July 26, 2017 by filing a complaint for quiet title as to real property located at 2545 6^th Ave., Los Angeles, California 90018 (the “Property”). On February 16, 2018, Plaintiff filed First Amended Complaint (“FAC”), the operative pleading, alleging eight causes of action: 1) breach of fiduciary duty, 2) breach of covenant of good faith and fair dealing, 3) unfair business practices, 4) deceit, 5) fraud, 6) fraudulent conveyance, 7) civil conspiracy, and 8) violations of Civ. Code sections 1185.

This case involves a dispute between siblings, Plaintiff and Defendant Giesel Richmond (“Giesel”), over the property. The FAC alleges that on October 23, 1995, Plaintiff and Giesel were made joint tenants of the property. In 1999, Plaintiff became severely depressed, and was debilitated until April of 2017. In 2005, Giesel sought to obtain a large loan from GF Mortgage Inc., dba Greystone Financial (“GF Mortgage”) and use the property as collateral. GF Mortgage informed Giesel that she would have to share the funds with Plaintiff, since they were joint tenants.

On June 3, 2005, former Defendant Benson L. Reed Sr. (“Reed”), a public notary, fraudulently notarized a quitclaim deed that transferred all of Plaintiff’s ownership interest to Giesel. Plaintiff has no memory of signing the deed or appearing before Reed. Plaintiff believes he was coerced into signing the deed because he was severely intoxicated and affected by his depression medication. Giesel then entered into an agreement with GF Mortgage to obtain a $244,000.00 loan using the property as collateral.

On September 13, 2019, the Court granted Giesel’s unopposed motion to compel Plaintiff’s deposition. Plaintiff was to be deposed by October 11, 2019, at a reasonable time and place chosen by Defendant (the “Deposition Order”).

On October 30, 2019, Giesel made an ex parte application for an order imposing sanctions or an order advancing the hearing on the motion for terminating sanctions. The Court granted the ex parte application in part and advanced the hearing. No opposition was filed as to either the ex parte request or motion for sanctions. The Court notes that Plaintiff orally opposed the ex parte request.

If a party fails to obey a court order compelling it to provide a discovery response, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction . . . .” (CCP §§ 2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery process, which includes disobeying a court order to provide discovery, is conduct subject to sanctions. (CCP § 2023.010(g).) Possible sanctions are:

(a) [A] monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct….

(b) [A]n issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) [A]n evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

(d) [A] terminating sanction by one of the following orders:

     (2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(e) [A] contempt sanction by an order treating the misuse of the discovery process as a contempt of court. 

(CCP § 2023.030 [emphasis added].)

The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (Puritan Ins. Co. v. Sup.Ct. (Tri-C Machine Corp.) (1985) 171 Cal.App.3d 877, 884 [interpreting former statute dealing with “refusal” to comply].) However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

“The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: the conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1224 [terminating sanctions by trial court not an abuse of discretion where defendant repeatedly violated court orders to produce records].) “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [terminating sanctions order reversed where there was no showing the court could not have obtained compliance by using lesser sanction e.g., issue or evidentiary].) In extreme cases, however, terminating sanctions as a first measure are authorized. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.)

Discussion

Giesel requests that the Court impose sanctions on Plaintiff for his failure to appear at his second noticed deposition. Giesel notices monetary and terminating sanctions.^[1]

On September 23, 2019, Giesel served a Second Notice of Taking Deposition and Demand to Produce Documents at Deposition on Plaintiff pursuant to the Deposition Order. (Sievers Decl., ¶ 7, Ex. B.) Plaintiff’s deposition was scheduled to take place at 2:30 p.m. on October 10, 2019. (Ibid.) Plaintiff did not object to the Second Notice of Deposition or to the Demand to Produce Documents. (Ibid.). Plaintiff did not appear at the noticed deposition or produce documents. (Id., ¶ 8.) The court reporter prepared and executed an Affidavit of Nonappearance dated October 11, 2019. (Id., ¶ 8, Ex. C.)

This motion provides sufficient evidence that Plaintiff failed to obey the Deposition Order. Further, Plaintiff has not offered any formal opposition to the motion, despite being present at the ex parte proceeding. While this show a failure to obey, the Court does not find that this satisfactorily shows that Plaintiff willfully disobeyed the order. The above evidence does not indicate that Plaintiff “refused” to appear to the deposition. Notably, Giesel’s evidence does not indicate if any informal attempts to contact Plaintiff were made, which may have revealed why Plaintiff did not appear at the depositions or whether he “refused” to appear as Giesel suggests. Thus, the Court does not find that terminating sanctions would be appropriate here as a first measure for compliance.

That said, The Court is mindful that Plaintiff’s failure to appear could prejudice Giesel if Plaintiff’s deposition is not taken with sufficient time to prepare for trial. The Court would therefore be amenable to continuing the trial date to allow for the deposition to take place, if needed. The Court is further mindful that Plaintiff is pro per; however, this does not allow Plaintiff to ignore his discovery obligations or excuse a failure to obey the Court’s orders.

Therefore, Giesel’s motion is GRANTED in part. The Court will impose additional monetary sanctions in an amount to be determined at the hearing and orders Plaintiff to appear at his noticed deposition within the next five days, at a reasonable time and location.

Moving party is ordered to give notice.