Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. NC040765, Elizabeth A. White, Judge.
Law Offices of Richard M. Laden and Richard M. Laden for Plaintiff and Appellant.
Law Offices of Calvin D. Bayles and Calvin D. Bayles for Defendants and Respondents Oscar Tobar, K&R Transportation, Inc., Juan Jose Rivera and Noel Moreno.
Marrone, Robinson, Frederick & Foster, Scot G. Sandoval and Maile K. Fulton for Defendant and Respondent Kintetsu World Express (USA), Inc.
MALLANO, Acting P. J.
Plaintiff Ramon Hernandez appeals from the dismissal of his action based on his failure to comply with court-ordered discovery. He contends that the dismissal constituted an abuse of discretion. We affirm.
BACKGROUND
In June 2003, Hernandez filed a personal injury complaint through Attorney Jack Diamond against Oscar Tobar and K&R Transportation, Inc. The complaint alleged that Hernandez had been injured in June 2002 as a result defendants’ negligence. (In documents filed at later dates, Hernandez explained that he had suffered injury to his right hand, including the loss of three fingers, while employed as a tractor-trailer driver delivering merchandise.) In 2004, Hernandez amended the complaint to add Juan Rivera and Noel Moreno as defendants. (Tobar, K&R, Rivera, and Moreno will hereafter be referred to collectively as Tobar.)
In February 2005, upon Attorney Diamond’s failure to appear at a status conference, Hernandez’s complaint was dismissed following hearing on an order to show cause re dismissal and $500 sanctions were ordered against Diamond. In March 2005, the dismissal was set aside, Diamond was ordered to pay an additional $1,607 sanctions within 30 days, and the matter was set for trial the following September.
In June 2005, Hernandez, now represented by Attorney Richard Laden (who has continued to represent Hernandez in the trial court and on appeal), again amended the complaint to add Kintetsu Intermodal (USA) as a defendant. (This name was later corrected to Kintetsu World Express (USA), Inc.) In September 2005, Hernandez amended the complaint to allege a premises liability theory against Kintetsu. Although not part of the record on appeal, Kintetsu and Tobar apparently also filed cross-complaints.
At various times during the pendency of the action, discovery was propounded on Hernandez by Tobar and Kintetsu. On February 9, 2006, Kintetsu served multiple motions on Hernandez to compel discovery with regard to interrogatories, requests for admissions, and requests for production of documents. On February 14, 2006, Tobar served similar motions. Hernandez did not file any opposition to the motions.
At a hearing held on March 16, 2006, at which Hernandez did not appear, Tobar’s motions were granted. Hernandez was ordered within 20 days to produce verified responses, without objection, to Tobar’s form interrogatories, special interrogatories, and document production demands. Tobar’s requests for admission were deemed admitted. Sanctions of $3,085 were awarded against Hernandez and Attorney Laden, payable in 20 days. At a hearing held on March 21, 2006, at which Hernandez again did not appear, Kintetsu’s motions were granted. Hernandez was ordered within 20 days to produce verified responses, without objection, to Kintetsu’s form interrogatories and document production demands. Kintetsu’s requests for admission were deemed admitted. Sanctions of $1,330 were awarded against Hernandez and Laden, payable in 20 days.
At a trial setting conference held on March 30, the matter was set for trial on August 30, 2006.
Hernandez did not respond to discovery as ordered by the court. On June 2, 2006, Kintetsu filed a motion seeking dismissal or other sanction based on Hernandez’s failure to comply with court-ordered discovery. On June 6, Tobar filed a similar motion. The motions were set for hearing on June 29, 2006.
On June 28, 2006, Hernandez filed opposition to the motions. In a supporting declaration, Attorney Laden asserted that by February 9, 2006, he had dictated responses to all of the discovery. But because he was scheduled to be out of town for the next two weeks, he asked predecessor counsel to prepare and serve the responses, which predecessor counsel agreed to do. It was not until the trial setting conference on March 30 that Laden learned the responses had not been served (with the exception that counsel for Tobar told Laden that counsel had received faxed copies of the discovery on March 29). Laden’s declaration continued: “Subsequently, I have made diligent efforts to obtain the previously prepared and dictated discovery and documents and to serve full and complete responses. [¶] Unfortunately, I am constrained by attorney-client privilege from completely disclosing the course of events that has ensued over the past two months. I can, however, state that I now believe that I have my client’s full and unfettered cooperation without any interference from or reliance on others in the further progress of this case.” According to Laden, complete responses to discovery, without objection, had now been served.
A hearing on both dismissal motions was held, as noticed, on June 29, 2006. The trial court noted that no opposition had been received. Laden said that he had filed opposition “yesterday late” and was told by the clerk that it would be handed to the court. The court noted that the late filing was “in violation of the local court rules, in violation of the [Code of Civil Procedure]” and that the court had not seen the opposition papers. Counsel for Kintetsu reviewed the history of Hernandez’s failure to comply with discovery, further stating, “We are 30 days from discovery cutoff. We are incurring expenses with experts. We have medical experts. We got to get out of this now.” Laden responded with assertions similar to those contained in his declaration in opposition to the motions to dismiss. Counsel for Kintetsu next informed the court that the discovery responses he received had not been verified.
In announcing its ruling, the court reviewed the relevant chronology of the case and concluded: “All of that being said, it is a cumulative failure, upon failure, upon failure; and the court feels it is to the point where defendants are prejudiced in their ability to prepare for trial because the case is so old. I can’t really mitigate that prejudice by continuing the trial. It would just incur further fees, further costs. And ultimately, I think, the record is very clear the case should be dismissed. Both motions to dismiss are granted.” The court further stated that it would not award monetary sanctions because the ultimate sanction of dismissal had been imposed, adding to counsel for Kintetsu, “I doubt you would ever recover the sanctions anyway.”
An order dismissing Tobar was filed on June 29, 2006, and an order dismissing Kintetsu was filed on July 11, 2006. This appeal followed.
DISCUSSION
“‘“‘The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citation.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful. . . .’”’ [Citation.]” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) “The rule that a sanction order cannot go further than is necessary to accomplish the purpose of discovery is some [46] years old in California, and is rooted in constitutional due process. [Citation.]” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.)
Hernandez contends that the terminating sanction went farther than necessary to accomplish the purpose of discovery and thus constituted an abuse of discretion because by the time of the sanctions hearing the discovery ordered by the court had been provided to opposing counsel. And with respect to the lack of verification, Hernandez argues that discovery responses, which are typically prepared by counsel, are often initially served without verification as “a common, and generally acceptable, practice among counsel as a professional courtesy.” Hernandez’s arguments are without merit.
Hernandez’s opposition to the motions to dismiss was filed well after the nine-court-day deadline of Code of Civil Procedure section 1005, subdivision (b), and thus the trial court did not err in failing to consider it. But even if the opposition had been considered, it would do little to support Hernandez.
The salient points of the opposition were Laden’s uncorroborated assertion that he had turned his duties to provide discovery over to his predecessor counsel and his claim, without elaboration, that the attorney-client privilege prohibited him from explaining what had happened the preceding two months. Laden did not attempt to explain why he failed to make inquiry about defendants’ motions demanding compliance with discovery. Nor has any cogent reason been offered why Hernandez, through Laden, now expects professional courtesy to be extended regarding the failure to provide legally sufficient, verified responses to discovery. Finally, as noted by the trial court in recognizing that any sanction short of dismissal would require a continuance of trial, Hernandez’s delays have caused prejudice to defendants.
As we stated in Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36–37, and reiterated in Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620, “‘[T]he question before this court 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. [Citation.] Moreover, imposition of a lesser sanction would have permitted [plaintiff] to benefit from [his] stalling tactics. [Citation.] The trial court did not abuse its discretion by tailoring the sanction to the particular abuse. [Citation.]’” (See also Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 490–491.)
DISPOSITION
The orders under review are affirmed.
We concur: VOGEL, J. JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.