Opinion
A101311.
10-15-2003
YAN I. GIMELFARB, Plaintiff and Appellant, v. PACECO CORPORATION, Defendant and Respondent.
Yan I. Gimelfarb, appearing in propria persona, appeals the grant of terminating sanctions and dismissal of his lawsuit against Paceco Corporation (Paceco), his former employer. We find no abuse of discretion and affirm.
Factual and Procedural Background
In January 2002, appellant filed his first amended complaint alleging wrongful termination and lateness of final paycheck. He alleged that his employment as an electrical engineer had been terminated on his fourth day of work for Paceco, after he complained that the unidentified project he was working on violated applicable safety standards.
Paceco propounded interrogatories and requests for documents in April 2002. Appellant did not respond. After a case management conference on June 4, 2002, the court ordered appellant to respond to the outstanding discovery requests by July 5, 2002, and set his deposition for August 5, 2002.[] Instead of responding on time, appellant made an email request for a 20-day extension, claiming the discovery process was "a big burden," and "[t]he general rules can not [sic] apply to everyone." In view of appellants upcoming deposition, counsel for Paceco informed appellant by letter dated July 8, 2002, that she would file a motion to compel if his responses had not been received by July 15, 2002. In her declaration, counsel described numerous unsuccessful attempts to contact appellant by mail, telephone and email. Appellants telephone number had been disconnected, and letters were returned marked "unclaimed" and "returned to sender." When counsel obtained a new telephone number from the court, appellant did not return her calls. On August 19, 2002, counsel received a final communication from appellant, in the form of a brief email that made no mention of his outstanding discovery obligation.
According to counsels declaration, the trial court supervised personal service of the discovery at the conclusion of the case management conference.
During an August 22, 2002 case management conference, according to counsels declaration, appellant advised the court he would not respond to the discovery order because the documents sought would be used for a summary judgment motion against him. The court directed Paceco to stop mediation efforts and advised it to pursue all legal remedies, including filing a motion to compel seeking terminating sanctions. When the court asked appellant to verify his current address, he provided the same post office box number to which Paceco had been sending correspondence since June 2002. On August 24, 2002, another express mail letter sent to that address was delivered to counsels office marked "returned to sender" and "unclaimed."
On August 29, 2002, Paceco filed a motion to compel discovery responses, seeking sanctions and expenses, including attorney fees. Appellant filed opposition, arguing that the trial court was not authorized to issue an order requiring his responses, due to various alleged procedural irregularities; that he should be exempted from normal discovery rules as a pro. per. litigant; and that all information could be obtained at his deposition.[] He explained he would no longer contact counsel for Paceco because she "tend[ed] always to misinterpret Plaintiff."
Appellant claimed he had not received the first request for discovery due to his change of address. Appellant also claimed that his English language skills were "far inferior to any American born citizen," that "answering questions during depostion would be much less oppressive and burdensome," and that his "typing and self expression skills [were] extremely low." He further complained: "But how easy is it flash the truth? May be it is easy but one day it all comes out? The reason Plaintiff remember so much details is because there is an emotional part for the Plaintiff in this litigation. And the hardest part for the Plaintiff would be to do is to Flash it out his memories as Plaintiff was unjustly treated by his former employer as he was not a human being at all." (Bold in original.)
After a hearing on September 25, 2002, the trial court granted the motion to compel, ordering appellant to respond to the discovery by October 9, 2002, and to pay $1,463 in sanctions to Paceco. The request for terminating sanctions was denied, but appellant was advised "that failure to comply with this Court order will result in the imposition of stronger sanctions, including evidence or issue sanctions, or possibly terminating sanctions."
On October 11, 2002, Paceco moved for terminating sanctions based on appellants failure to comply with the courts September 25 order, contending that appellant had provided only evasive and incomplete responses to some interrogatories, and had produced none of the requested documents. On October 15, 2002, the date scheduled for his deposition, appellant refused to proceed unless Paceco provided a Ukrainian translator. Appellant also opposed Pacecos second motion to compel, arguing that he had complied with all discovery and provided all information and documents. After hearing argument on the motion, the court continued the hearing to October 31, 2002, ordering the parties to meet and confer and giving appellant until October 25 to supply additional information and/or documents. Paceco was ordered to supply the court with a status update by October 29, 2002.
After the hearing, appellant delivered a check for $200 to Pacecos counsel, along with a note stating: "I will comply with a judge order on time I do not know when. I should not be prizoner [sic]. I will fully comply. I will give you everything I have in the light of your explanations. I will comply in a timely fashion. Do not rush me. I can not [sic ] do everything by Friday." Appellant provided some additional responses on October 25 and 29, 2002, but Paceco continued to protest that his answers were incomplete and failed to disclose specified material information. In the October 29, 2002 case status update ordered by the court, Paceco requested additional sanctions based on appellants withholding of discovery and unethical conduct of communicating directly with Paceco.[]
In an email sent to his former supervisor on October 28, 2002, appellant stated, inter alia: "I wanted to talk with you on the phone. The further the lawsuit goes the more documents will judge see. We do not need any publicity, information to different categories of people. And some of them even will pay for it. . . . Lawsuit is nothing compare[d] to that might happen to reputation of the company. Lawsuit does not make any difference because I will step up and REPORT NOW which smartly [I] did not do before. The longer the lawsuit goes the more information the judges finding in the courts. And judges are friends of the government."
After hearing the parties arguments on October 31, 2002, the court entered an order granting Pacecos motion and dismissing the complaint with prejudice. The court found appellant "has not only willfully disobeyed three court orders directing him to provide discovery to Paceco, but also, more generally, that [appellant] has engaged in a consistent and extended pattern of refusing to comply with the discovery statutes and of frustrating Pacecos legitimate efforts to obtain the information it needs to prepare its case for trial." This timely appeal followed.
Discussion
A dismissal order entered as a sanction for misuse of the discovery process pursuant to Code of Civil Procedure section 2023 is reviewed under the abuse of discretion standard. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244; R. S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491.) The trial court here concluded terminating sanctions were appropriate because appellant had willfully disobeyed three court orders relating to discovery, with no attempt to explain his failures. His behavior had hindered Pacecos attempts to prepare for trial, scheduled for January 2003, because "many of Pacecos discovery requests go to the very heart of [appellants] claims against it, and it is information that can only be obtained from [appellant]." The court also noted: "That Paceco has also been unable to take [appellants] deposition is simply more evidence of [his] recalcitrance." The court further found that its "previous imposition of monetary sanctions has had no effect on [appellants] behavior. And precisely because of [appellants] refusal to respond to Pacecos discovery requests, the Court is not in a position to fashion its own issue or evidentiary sanctions. Moreover, Pacecos requested evidentiary sanctions—prohibiting [appellant] from introducing evidence that Pacecos designs are flawed, that Paceco has violated OSHA or California statutory provisions, or that [appellant] has suffered any damages—amount, for all practical purposes, to terminating sanctions. Accordingly, the Court finds that the imposition of terminating sanctions, although severe, [is] at this point the appropriate remedy under the circumstances. [Citation.]"
Appellants appellate briefs provide no relevant arguments regarding the merits of the courts order or its reasons for dismissing his complaint, nor does he properly discuss the applicable standard of review. Instead, he appears to contend the order should be reversed because a previous minute order allegedly suffered from certain procedural defects, and he had produced one document relevant to his second cause of action.[]
Appellant also appears to have interpreted the presence of security guards in the courtroom as a personal threat that he would be arrested, and claims he was denied an opportunity to respond to Pacecos October 29, 2002 status report as ordered by the court. The trial court found it significant, however, that appellant "made a notation on the cover of his supplemental responses to the effect that he was `going out of city this weekend, precluding any further discussion between the parties during that time. [¶] In spite of this, defense counsel contacted [appellant] via email on Monday, October 28, 2002, in a last-ditch effort to meet and confer with [appellant]. In response to counsels email, [appellant] left three voicemail messages that, although somewhat nonsensical, do nonetheless clearly demonstrate [appellants] unwillingness to obey the Courts discovery orders." We also note the October 23, 2002 sanctions motion had been fully briefed and argued by the parties.
Appellant has failed to demonstrate that he was prejudiced by any of the alleged procedural errors to which he somewhat opaquely refers. Our review of the record reveals ample support for the trial courts conclusion that terminating sanctions, although a drastic penalty to be used sparingly, were nevertheless warranted under the circumstances presented here, based on appellants willful and repeated failure to comply with the courts discovery orders. Appellant has demonstrated no abuse of discretion.
Disposition
The orders of the trial court are affirmed.
We concur: PARRILLI, J. and POLLAK, J.