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This case was last updated from Los Angeles County Superior Courts on 06/17/2019 at 21:35:47 (UTC).

GABRIEL TOLMAJYAN VS RYAN GALLARDO ET AL

Case Summary

On 08/24/2017 GABRIEL TOLMAJYAN filed a Personal Injury - Motor Vehicle lawsuit against RYAN GALLARDO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3642

  • Filing Date:

    08/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiff and Petitioner

TOLMAJYAN GABRIEL

Defendants and Respondents

GALLARDO ONOFRE

GALLARDO RYAN

DOES 1 TO 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BROCK CAMERON Y. ESQ.

SAYLOR JEFFERSON

Defendant and Respondent Attorneys

ALAMO-HECHT NAI. ESQ.

SPRIGGS SCOTT

 

Court Documents

Association of Attorney

2/2/2018: Association of Attorney

NOTICE OF DISASSOCIATION OF COUNSEL

5/11/2018: NOTICE OF DISASSOCIATION OF COUNSEL

Notice of Change of Address or Other Contact Information

6/13/2018: Notice of Change of Address or Other Contact Information

Substitution of Attorney

1/10/2019: Substitution of Attorney

Motion to Deem RFA"s Admitted

4/10/2019: Motion to Deem RFA"s Admitted

Motion to Compel Discovery

4/10/2019: Motion to Compel Discovery

Motion to Compel Discovery

4/10/2019: Motion to Compel Discovery

Unknown

4/16/2019: Unknown

Ex Parte Application

4/26/2019: Ex Parte Application

Minute Order

4/26/2019: Minute Order

Substitution of Attorney

6/3/2019: Substitution of Attorney

PROOF OF SERVICE SUMMONS

11/6/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

11/17/2017: PROOF OF SERVICE SUMMONS

CIVIL DEPOSIT

12/7/2017: CIVIL DEPOSIT

ANSWER TO COMPLAINT

12/7/2017: ANSWER TO COMPLAINT

DEMAND FOR JURY

12/7/2017: DEMAND FOR JURY

SUMMONS

8/24/2017: SUMMONS

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

8/24/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

10 More Documents Available

 

Docket Entries

  • 06/17/2019
  • Opposition (OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY); Filed by RYAN GALLARDO (Defendant); ONOFRE GALLARDO (Defendant)

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  • 06/13/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 06/06/2019
  • Motion to Compel ( Motion to Compel Deposition); Filed by GABRIEL TOLMAJYAN (Plaintiff)

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  • 06/03/2019
  • Substitution of Attorney; Filed by RYAN GALLARDO (Defendant)

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  • 05/10/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Advanced and Continued - by Court

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  • 05/10/2019
  • at 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Deem Request for Admissions Admitted - Not Held - Advanced and Continued - by Court

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  • 04/26/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (to Continue Trial) - Held - Motion Granted

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  • 04/26/2019
  • Minute Order ( (Ex Parte Application to Continue Trial)); Filed by Clerk

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  • 04/26/2019
  • Ex Parte Application (to Continue Trial); Filed by GABRIEL TOLMAJYAN (Plaintiff)

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  • 04/16/2019
  • at 11:32 AM in Department 4A, Christopher K. Lui, Presiding; Court Order

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20 More Docket Entries
  • 12/07/2017
  • CIVIL DEPOSIT

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  • 12/07/2017
  • Receipt; Filed by RYAN GALLARDO (Defendant); ONOFRE GALLARDO (Defendant)

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  • 12/07/2017
  • Demand for Jury Trial; Filed by Defendant/Respondent

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  • 11/17/2017
  • Proof of Service (not Summons and Complaint); Filed by GABRIEL TOLMAJYAN (Plaintiff)

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  • 11/17/2017
  • PROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • PROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • Proof of Service (not Summons and Complaint); Filed by GABRIEL TOLMAJYAN (Plaintiff)

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  • 08/24/2017
  • Complaint; Filed by GABRIEL TOLMAJYAN (Plaintiff)

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  • 08/24/2017
  • SUMMONS

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  • 08/24/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC673642    Hearing Date: March 05, 2021    Dept: 28

Motion to Tax Costs

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On August 24, 2017, Plaintiff Gabriel Tolmajyan (“Plaintiff”) filed a complaint against Defendants Ryan Gallardo and Onofre Gallardo.  Plaintiff alleges general and motor vehicle negligence in the complaint arising from an automobile collision that occurred on September 9, 2016.

On December 10, 2020, the Court granted Plaintiff’s motion for summary judgment against Defendant Ryan Gallardo.

On January 13, 2021, Plaintiff filed a memorandum of costs.

On January 29, 2021, Defendants Ryan Gallardo and Onofre Gallardo filed a motion to tax costs pursuant to California Rules of Court, rule 3.1700.

On February 11, 2021, the Court dismissed Defendant Onofre Gallardo with prejudice.

An Order to Show Cause Re: Dismissal (Settlement) is scheduled for March 16, 2021.

PARTIES REQUESTS

Defendants Ryan Gallardo and Onofre Gallardo ask the Court for an order taxing three categories of costs Plaintiff has requested in a memorandum of costs.

LEGAL STANDARD

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of dismissal, or within 180 days after entry of judgment, whichever is first.”  (Cal. Rules of Court, rule 3.1700, subd. (a)(1).)

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the costs memorandum.  If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.”  (Cal. Rules of Court, Rule 3.1700, subd. (b)(1).)

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.  This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise.  Absent such statutory authority, the court has no discretion to deny costs to the prevailing party.”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129 (citations and internal quotations omitted); Code of Civ. Proc. § 1032, subd. (b) (“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding”).)

Initial verification of a bill of costs is prima facie evidence of the reasonable necessity of the claimed costs, and there is no requirement that copies of bills, invoices, statements or other supporting documentation be attached to the bill of costs; however, if costs have been put in issue by a motion to tax costs, the burden shifts to the party claiming costs to establish reasonableness.  (Jones v. Dumrichob, (1998) 63 Cal.App.4th 1258, 1267.)

DISCUSSION

Defendant Onofre Gallardo has no standing to bring this motion because Defendant Onofre Gallardo was dismissed with prejudice, Plaintiff was not a prevailing party against Defendant Onofre Gallardo, and costs are not sought against Defendant Onofre Gallardo.

Defendants Ryan Gallardo and Onofre Gallardo challenge three categories of Plaintiff’s requested costs. Defendant Ryan Gallardo argues the request for filing, motion, court reporter, and other fees must be stricken from the memorandum of costs. The Court agrees that the $180 in costs requested for filing the motions to compel and motion to deem matters as admitted and $75.15 in costs for filing the motion to terminating sanctions should be stricken.  On July 3, 2019 and October 29, 2019, the Court deliberately awarded those costs incurred as a result of filing the moving and supporting documents in the form of monetary sanctions.  Collecting these costs here would result in a duplicative recovery.  Therefore, $255.15 is properly stricken from the filing and motion fees section.  The remaining costs requested in the filing and motion fees section are proper.

Next, Defendant Ryan Gallardo argues the request for court reporter fees must be stricken from the memorandum of costs.  The Court agrees.  Court reporter fees are awardable only when established by statute.  (Cal. Code Civ. Proc., § 1033.5, subd. (a)(11).)  There is no statute presented to the Court that would allow for the award of court reporter fees that were incurred at hearings on motions to compel and a motion for summary judgment.  Thus, these costs are properly stricken.

Finally, Defendant Ryan Gallardo argues the “other” requested fees, which includes a mediation fee and a download fee of an opposition not served on Plaintiff, must be stricken.  The Court disagrees.  These costs were reasonably necessary for litigation and not merely convenient due to the Court’s congestion, the litigant’s need for speedy justice, and the need for adequate notice of claims.  Thus, these costs are properly awarded.

CONCLUSION

The motion is GRANTED in part and DENIED in part.

The Court STRIKES $255.15 in costs requested in the filing and motion fees section of the memorandum of costs filed on January 13, 2021.

The Court also STRIKES the costs requested for court reporter fees in the memorandum of costs filed on January 13, 2021.

Defendant Ryan Gallardo is ordered to give notice of this ruling.

Defendant Ryan Gallardo is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC673642    Hearing Date: February 26, 2021    Dept: 28

Motion to Set Aside

Having considered the moving, opposing, reply, and supplemental papers, the Court rules as follows.

BACKGROUND

On August 24, 2017, Plaintiff Gabriel Tolmajyan (“Plaintiff”) filed a complaint against Defendants Ryan Gallardo and Onofre Gallardo.  Plaintiff alleges general and motor vehicle negligence in the complaint arising from an automobile collision that occurred on September 9, 2016.

On December 10, 2020, the Court granted Plaintiff’s motion for summary judgment against Defendant Ryan Gallardo.

On January 20, 2021, Defendants Ryan Gallardo and Onofre Gallardo filed a motion to set aside pursuant to California Code of Civil Procedure section 473, subdivision (b).

On February 11, 2021, the Court dismissed Defendant Onofre Gallardo with prejudice.

An Order to Show Cause Re: Dismissal (Settlement) is scheduled for March 16, 2021.

PARTYS REQUEST

Defendant Ryan Gallardo asks the Court to set aside the December 10, 2020 order granting of summary judgment.

LEGAL STANDARD

California Code of Civil Procedure section 473, subdivision (b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, . . . order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, . . . order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. . . .”

DISCUSSION

On July 3, 2019, the Court deemed matters in both of Plaintiff’s Request for Admissions (Set Two) as deemed as true against Defendant Ryan Gallardo.  Based on this order, the Court granted summary judgment in Plaintiff’s favor and against Defendant Ryan Gallardo on December 10, 2020.

Defendant Ryan Gallardo asks the Court to set aside the December 10, 2020 order because Defendant Ryan Gallardo’s counsel admits to negligently failing to serve timely discovery responses to both of Plaintiff’s Request for Admissions (Set Two).  (Spriggs Decl., 4.)  

The Court finds mandatory relief cannot be ordered based on Defendant Ryan Gallardo’s counsel’s declaration of fault. California Code of Civil Procedure section 473, subdivision (b) applies only to an entry of default, default judgment, and dismissal.  (See also Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 295 [stating a court cannot set aside an order granting summary judgment based on the mandatory provision of section 473, subdivision (b)].)

The Court finds the discretionary relief cannot be ordered either.  

Defendant Ryan Gallard’s counsel’s neglect is imputed on Defendant Ryan Gallard.  (See Elston v. City of Turlock (1985) 38 Cal.3d 227, 236 [superseded by statute on other grounds].)  Defendant Ryan Gallard’s counsel’s failure to serve timely responses to Plaintiff’s Request for Admissions (Set Two) after served with the discovery requests, after served with the motion later heard on July 3, 2019 is inexcusable.  (See Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400 [“[c]onduct falling below the professional standard of care, such as failure to timely object or properly advance an argument, is not therefore excusable”] [citation omitted].)  

Moreover, Defendant Ryan Gallard has waited over a year and a half since the July 3, 2019 order was taken against him before he sought relief from that judgment.  Defendant Ryan has not shown that he has acted diligently to obtain relief from the July 3, 2019 order and, thus, this “prerequisite to granting relief under section 473” has not been satisfied.  (See DeMello v. Souza (1973) 36 Cal.App.3d 79, 86.)  Therefore, the motion must be denied.

CONCLUSION

The motion is DENIED.

Plaintiff is ordered to give notice of this ruling.

Plaintiff is ordered to file the proof of service of this motion with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC673642    Hearing Date: December 10, 2020    Dept: 28

Motion for Summary Judgment or, Alternatively, Summary Adjudication

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On August 24, 2017, Plaintiff Gabriel Tolmajyan (“Plaintiff”) filed a complaint against Defendants Ryan Gallardo and Onofre Gallardo.  Plaintiff alleges general and motor vehicle negligence in the complaint arising from an automobile collision that occurred on September 9, 2016.

On September 15, 2020, Plaintiff filed a motion for summary judgment or, alternatively, summary adjudication against Defendant Ryan Gallardo pursuant to California Code of Civil Procedure section 437c.

Trial is set for January 29, 2021.

PARTYS REQUEST

Plaintiff asks the Court for an order granting summary judgment or, alternatively, summary adjudication against Defendant Ryan Gallardo because Defendant Ryan Gallardo admitted to being liable for Plaintiff’s damages.

JUDICIAL NOTICE

Plaintiff asks the Court to take judicial notice of the Court’s July 3, 2020 minute order deeming two sets of Requests for Admissions (Set Two) as true against Defendant Ryan Gallardo.  This request is GRANTED pursuant to California Evidence Code section 452, subdivision (d)(1).

Plaintiff also asks the Court to take judicial notice of the motion filed on April 10, 2019, which was the subject of the Court’s July 3, 2020 minute order.  This request is also GRANTED pursuant to California Evidence Code section 452, subdivision (d)(1).

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) “A plaintiff . . . has met his or her burden in showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  (Ibid.)  A moving plaintiff does not need to negate a defendant’s defenses to be entitled to summary judgment.  (Ibid.; Old Castle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 565.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

“‘[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests for admitting the truth of all matters contained therein.’”  (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 971 [citing Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979].) Swedberg v. Christina Community Builders (1985) 175 Cal.App.3d 138, 143-144.) 

Plaintiff’s undisputed material facts establish the following.  Defendant Ryan Gallardo was negligent.  (UMF No. 1.)  Defendant Ryan Gallardo’s negligence was a substantial factor in causing Plaintiff’s harm.  (UMF No. 2.)  Plaintiff sustained $11,018.00 in medical damages and $135,000.00 in a loss of earnings.  (UMF Nos. 3-4.)

The Court finds Plaintiff has met his burden.  Defendant Ryan Gallardo has admitted to negligently causing Plaintiff’s $146,018.00 in damages.  Thus, the burden shifts to Defendant Ryan Gallardo.

Defendant Ryan Gallardo argues that there were two sets of Requests for Admissions (Set Two) that Plaintiff propounded on Defendant Ryan Gallardo and it is unclear which was deemed as admitted in the Court’s July 3, 2020 minute order.  The Court disagrees.  The July 3, 2020 minute order makes clear that “the matters asserted in both of Plaintiff’s Request for Admissions (Set Two)” were deemed as true against Defendant Ryan Gallardo.  (7/3/20 Minute Order, p. 5.)  Thus, the motion is properly granted.

Additionally, the Court quickly notes that neither summary judgment or summary adjudication is sought against Defendant Onofre Gallardo.

CONCLUSION

Plaintiff’s motion for summary judgment against Defendant Ryan Gallardo is GRANTED

Plaintiff is ordered to give notice of this ruling.

Plaintiff is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC673642    Hearing Date: October 29, 2019    Dept: 4A

Motion for Terminating Sanctions

Having considered the moving papers, opposition, and reply. The Court rules as follows.

BACKGROUND

On August 24, 2017, Plaintiff Gabriel Tolmajyan (“Plaintiff”) filed this action against Defendants Ryan Gallardo and Onofre Gallardo alleging motor vehicle negligence arising from an automobile collision that occurred on September 9, 2016.

On July 3, 2019, this Court ordered Defendant Ryan Gallardo (hereinafter referred to as “Defendant”) to provide verified responses, without objections, to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One) within twenty (20) days of the Order. (Saylor Decl. Exh. 1.) The Court deemed the matters asserted in Plaintiff’s Requests for Admission (Set Two) to be true against Defendant, and ordered Defendant to appear for a deposition within 30 days of the Order. (Id.) Finally, this Court ordered Defendant, his counsel of record, and his former counsel of record to pay $1,954 in sanctions.

On September 17, 2019, Plaintiff filed the present motion for an order imposing terminating sanctions entering default judgment of $146,018 for Defendant’s failure to comply with the Court’s July 3, 2019 order.

Trial is set for March 20, 2020.

PARTY’S REQUEST

Plaintiff requests that this Court grant terminating sanctions by entering default judgment against Defendant Ryan Gallardo in the amount of $146,018 and moves for sanctions in the amount of $4,579.15.

LEGAL STANDARD

If a party fails to comply with a court order compelling a response to interrogatories or a request for production, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).) California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . ., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . (g) Disobeying a court order to provide discovery . . .”

“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 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[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.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Ibid. (citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); 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, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

DISCUSSION

Plaintiff’s motion for terminating sanctions is premised upon Defendant’s allegedly willful failure to comply with this Court’s July 3, 2019, order. As stated above, on July 3, 2019, this Court ordered Defendants to provide verified responses, without objections, to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One) within twenty (20) days. (Saylor Decl. Exh. 1.) The Court deemed the matters asserted in Plaintiff’s Requests for Admission (Set Two) as true against Defendant, and ordered Defendant to appear for a deposition within 30 days. (Id.) Finally, this Court ordered Defendant, his counsel of record, and his former counsel of record to pay $1,954 in sanctions. However, [w]hether Defendant complied with the Court’s order to pay monetary sanctions is irrelevant to the court’s determination as to whether terminating sanctions should be imposed, because a court may not issue a terminating sanction for failure to pay a monetary discovery sanction. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)

Thus, Defendant was ordered to provide responses without objections by July 23, 2019, and was ordered to submit to a deposition by August 3, 2019. On July 8, 2019, counsel for Plaintiff reached out to Defense counsel Scott Spriggs to arrange for the subject deposition. (Saylor Decl. Exh. 4.) Prior to the July 3, 2019 Order, Defendant had served responses to the discovery requests but asserted 50 identical conclusory objections. (Id., Exh. 5.) On July 8, 2019, Plaintiff’s counsel also sent Defense counsel a letter, noting that the June 28, 2019, discovery responses served on Plaintiff were nothing but objections, and that the Court had ordered Defendant to provide objection-free responses. (Id. Exh. 6.) A review of the subject June 28, 2019 responses reveals that Defendant asserted the identical objection to every response stating that the interrogatory calls for expert testimony and that responding party lacks sufficient personal knowledge. (Id. Exh. 5.)

Plaintiff’s counsel declares that he received no objection-free responses as ordered by the Court, and that neither former Defense counsel (Law Offices of Gregory J. Lucett) nor current Defense counsel (Kinkle, Rodiger & Spriggs) responded to letters regarding the Court’s Order or the imposed sanctions. (Id. ¶ 14.) Plaintiff’s counsel declares that no deposition dates have been provided, nor have any compliant responses been served. (Id. ¶¶ 17-18.)

In opposition, Defendant argues that he has not refused to participate in a deposition, but rather he is unable to travel to a proper deposition location under Cal. Civ. Code § 2025.250(a). The opposition makes no mention of the discovery responses which were due on July 23, 2019. Defendant has failed to comply with this Court’s July 3, 2019 Order, but he argues that the failure to comply was not willful. Defendant argues that “DEFENDANTS reside in Van Couver, Washington and the parties have yet to arrange a convenient location, date and time to conduct the deposition, which is not a lack of cooperation but a lack of coordination.” (Opp. 3:19-21.) It is disingenuous for Defendant to raise such an argument when Defendant has failed to reply to Plaintiff’s counsel’s attempts to meet and confer regarding the deposition. (Saylor Decl. ¶ 16.) There can be no coordination or cooperation where one side of this action engages in a policy of radio silence. Plaintiff’s counsel declares that he also made “at least four or five calls to Mr. Gallardo’s various lawyers trying to obtain discovery before filing motions to compel.” (Id. ¶ 24.)

Defendant also argues that “pursuant to California Civil Code § 2025.260, the party giving Notice of Deposition bears the financial burden to arrange for DEFENDANTS appearance at the specified time and location and, here, PLAINTIFF has not done so,” making the issue a matter of “PLAINTFF’s failure to pay for DEFENDANT’s transportation costs to a deposition” rather than a matter of disobedience. (Opp. 4:23-25.) While this contention may have been a good rejoinder to Defendant’s motion to compel, it provides no excuse for Defendant’s failure to seek relief from the Court order compelling the deposition, resistance to good faith meet and confer efforts, and non-compliance with a valid Court order. Nor does it explain Defendant’s failure to provide verified responses without objections to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One).

As of the date of this hearing, Defendant has been in non-compliance with the July 3, 2019, Order for just shy of ninety (90) days. Defendant has provided no explanation for failing to communicate with Plaintiff’s counsel regarding a scheduling of the deposition, and does not explain his failure to provide the ordered discovery responses without objections or pay the imposed sanctions.

An order granting terminating sanctions is a drastic remedy that should only be imposed where a party has engaged in a egregious pattern of discovery abuse or other misconduct. Defendant’s conduct in this case, while non-compliant with an outstanding order and lacking in the kind of diligence necessary to arrange the deposition of an out-of-state party, does not rise (or descend) to the level of misconduct justifying terminating sanctions. The Court concludes that lesser sanctions are available as an interim step to compel Defendant’s satisfaction of his discovery obligations.

Based on the foregoing, the Court orders Defendant to comply with the July 3, 2019, Order within fourteen (14) days, specifically by: (1) providing responses without objections to Plaintiff’s Form Interrogatories (Set Two) and Special Interrogatories (Set One), (2) engaging in a good faith meet and confer with Plaintiff’s counsel to schedule a deposition within thirty (30) days of this Order, and (3) by paying $1,954 in sanctions.  

Further, the Court imposes additional monetary sanctions to signal to Defendant and defense counsel the need to comply with this Court’s orders in a prompt and meaningful manner. Plaintiff requests $4,579.15 in sanctions for Defendant’s misuse of the discovery process under Code Civ. Proc. §2023.030. Saylor declares that “[t]he opposition took at least five hours of my time to draft, file, and serve. This is, without a doubt, lower than the real amount of time.” (Saylor Decl. ¶ 27.) Presumably, Saylor intended to declare that the “motion” and not the “opposition” took five (5) hours to draft. Saylor declares that he anticipates two (2) hours for attending the hearing, and two (2) hours for drafting a reply. (Id.) The filing of the motion cost $68.40, the filing of the Reply cost $6.75, and Counsel requests $4 for transportation to the Court. (Id.) Counsel requests an hourly rate of $500. 

The Court finds the requested attorney’s fees and costs excessive in light of the short relatively simple briefs submitted. While the Court does not question counsel’s hourly rate, this motion could have been drafted at much less cost by a less experienced lawyer. As a result, the Court orders Defendant Ryan Gallardo and his counsel of record to pay Plaintiff $1,875.15 ($300/hr. x 6 hours plus filing fees of $75.15), jointly and severally, within thirty (30) days of this Order.

Defendant is ordered to give notice of this ruling.

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