Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV028465
Premo, J.
Plaintiff Yong Tan Huang appeals from an order dismissing his complaint against defendants Tim Bell and Gayle Bell. The dismissal was entered as a sanction for plaintiff’s failure to complete his deposition after the trial court had ordered him to do so. Plaintiff contends that the trial court abused its discretion in dismissing his complaint as a sanction for his noncompliance. We disagree and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 12, 2004, plaintiff filed a complaint against defendants, alleging that he suffered personal injuries while working at defendants’ residence when a stack of wood, placed by defendant Tim Bell, fell on him.
On June 3, 2005, defendants moved to compel plaintiff to answer certain questions which he refused to answer, on advice of counsel, at his February 11, 2005 deposition. The trial court granted the motion and ordered plaintiff to attend the resumption of his deposition within 30 days of the service of its order. Defendants served notice of entry of the trial court’s order on June 3, 2005.
After plaintiff failed to appear for his renoticed deposition on February 13, 2006, defendants moved to dismiss the complaint. Plaintiff’s opposition to the motion, filed on April 13, 2006, indicated that there was some confusion regarding which of several attorneys actually represented plaintiff. On April 17, 2006, the trial court granted the motion and dismissed plaintiff’s complaint.
The hearing on the motion to dismiss was noticed for April 14, 2006, and plaintiff’s opposition was therefore untimely. (See Code Civ. Proc., § 1005, subd. (b) [opposition papers must be filed at least nine court days before hearing date]; further statutory references are to the Code of Civil Procedure unless otherwise specified.)
The details of plaintiff’s history of legal representation in the trial court are not relevant to the instant appeal.
Plaintiff successfully moved to vacate the judgment, pursuant to sections 663 and 473, on the grounds that defendants’ notice of deposition had been served on an attorney who was not plaintiff’s counsel of record. The July 18, 2006 order granting the motion specified that plaintiff “is to submit to a deposition within 20 calendar days from the date of the hearing,” which was held on July 14, 2006.
Plaintiff appeared for his renoticed deposition on August 10, 2006. However, he left before the deposition was completed, complaining of tiredness.
Defendants brought another motion to dismiss the complaint, pursuant to section 2023.030, subdivision (d)(3), which was set for hearing on December 8, 2006. Plaintiff’s opposition included a copy of a fax from plaintiff’s doctor, dated August 18, 2006, which stated that plaintiff’s deposition should be taken by telephone. A subsequent physician’s note, dated September 11, 2006, advised that plaintiff could be deposed, by telephone, for no more than 20 minutes. The opposition also noted that plaintiff had been hospitalized twice, in August and September 2006.
On December 4, 2006, plaintiff filed his own declaration, apparently without his attorney’s knowledge. Plaintiff’s declaration included a number of letters to and from his attorney, some medical records, and documents relating to a complaint plaintiff filed with the State Bar of California against defendants’ attorney.
At the December 8, 2006 hearing, the trial court continued the hearing date to January 5, 2007, but advised the parties that if plaintiff’s deposition was not taken and completed by that date, the motion would be granted. On January 5, 2007, the trial court granted the motion to dismiss, finding that plaintiff’s deposition had not been taken nor had plaintiff demonstrated “good cause for the termination of the deposition.” The trial court concluded that plaintiff had failed “to show good cause for his repeated failures to complete or appear at his deposition[, and] has clearly misused the discovery process.” Judgment was entered in favor of defendants on January 31, 2007. Plaintiff’s motion for reconsideration, was denied on April 5, 2007.
The trial court declined to impose any restrictions or conditions on plaintiff’s deposition and indicated that plaintiff would have to be physically present at his deposition.
DISCUSSION
1. Standard of Review
“The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action.” (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904; accord, Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) “[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.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns, supra, 7 Cal.App.4th at pp. 36-37; Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1546.)
2. Statutory Authority to Impose Terminating Sanctions
“Misuses 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.” (§ 2023.010.) The trial court may, after notice to the affected party and a hearing, impose certain sanctions, including terminating sanctions, on any party found to be “engaging in conduct that is a misuse of the discovery process.” (§ 2023.030.)
These sanctions may be imposed “[t]o the extent authorized by the chapter governing any particular discovery method.” (§ 2023.030.) Thus, for example, section 2025.480 permits the deposing party to move for an order compelling the deponent to answer any question that he or she refused to answer at deposition. (§ 2025.480, subd. (a).) If the deponent fails to obey an order entered under section 2025.480, the court may then impose the more drastic sanctions authorized by section 2023.010, including dismissal in an appropriate case. (§ 2025.480, subd. (g); Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1583-1584.)
3. The Trial Court Did Not Abuse its Discretion in Dismissing Plaintiff’s Complaint
Plaintiff argues that the trial court abused its discretion in dismissing his complaint despite the fact that plaintiff had presented uncontradicted evidence regarding his medical limitations. This evidence consisted of two notes from plaintiff’s physicians, dated August 18, 2006 and September 11, 2006, respectively. These notes proposed certain restrictions on plaintiff’s deposition, specifically that it take place telephonically and that it last no more than 20 minutes.
It is clear that the trial court considered these notes, but elected not to accord them great weight in its deliberations. However, rather than immediately ruling on the motion to dismiss, the trial court continued the hearing for 28 days in order to give the plaintiff yet another opportunity to complete his deposition as ordered. During those 28 days, plaintiff apparently did nothing. He did not complete his deposition as ordered. He did not move for a protective order. He did not submit further evidence to show that the medical limitations described in the August and September 2006 physician’s notes were still applicable or that his current medical condition required other restrictions.
At the December 8, 2006 hearing, the trial court acknowledged “[w]e have letters from physicians that I really don’t know that I have a basis to believe saying that [plaintiff] can only submit to a 20-minute deposition by telephone.” The medical notes submitted by plaintiff were authored in September and August, over two months before the hearing. The trial court’s reluctance to conclude that the medical limitations described in those notes were still applicable appears justified.
Whether we agree that the circumstances justified the remedy selected by the trial court is not relevant. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) Its exercise of discretion in choosing among its options for imposing a discovery sanction will not be overturned absent a “manifest abuse exceeding the bounds of reason.” (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388.) And as noted above, the availability of more lenient sanctions “does not establish that the imposition of a more severe sanction was an abuse of discretion.” (Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 287.) This is particularly so where lesser sanctions would put opposing parties at a disadvantage by interfering with their ability to prepare their case.
On June 3, 2005, plaintiff was ordered to complete his deposition within 30 days. When he failed to do so by January 5, 2007, more than 18 months later and after failing to comply with two additional court orders directing him to complete his deposition within a specified period of time, plaintiff’s complaint was dismissed. Under the circumstances, the trial court acted within its discretion in doing so.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.