Opinion
A129106
02-29-2012
REDWOOD COAST PETROLEUM, INC., Plaintiff and Respondent, v. KAMAL YOUSEFFI AZARI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County
Super. Ct. No. FCS031582)
Kamal Youseffi Azari appeals contending the trial court erred when it imposed terminating snactions because of repeated discovery abuses. We conclude the trial court did not abuse its discretion and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant owns and operates a gas station in Vallejo. He purchased his gas from respondent Redwood Coast Petroleum, Inc. (Redwood).
In June 2008, Redwood filed a complaint against appellant alleging he failed to pay for the gas and related products he had purchased from Redwood. In April 2009, Redwood served its first round of discovery asking appellant to produce documents and seeking his response to interrogatories and requests for admission. By statute, appellant's responses were due May 18, 2009.
On April 28, 2009, appellant (who was representing himself in the proceedings) wrote to Redwood asking for an extension of time based on what he described as a "pending" settlement of the dispute. Counsel for Redwood denied that request on May 14, 2009. She conceded the parties were discussing settlement but denied that any sort of agreement was pending.
Appellant did not file his discovery responses on time. On June 8, 2009, Redwood filed a motion to compel responses to the document request and the interrogatories. Redwood also sought sanctions for appellant's failure to timely comply. In addition, Redwood filed a separate motion asking that the matters set forth in the requests for admission be admitted and seeking more sanctions. Both motions were set for hearing on July 10, 2009.
Appellant filed a partial response to the discovery requests on June 30, 2009. He provided answers to the interrogatories and requests for admission but his responses were not verified. In addition, appellant agreed to produce some of the documents Redwood requested but he insisted that they be copied at his own place of business and at Redwood's expense.
About a week later, appellant filed his opposition to Redwood's motions. He claimed he was confused by Redwood's discovery requests and the ongoing settlement discussions.
The discovery hearing was conducted on July 10, 2009. After hearing the arguments presented, the trial court granted Redwood's motions in orders dated August 26, 2009. The court ruled that the matters set forth in the requests for admission were deemed admitted and ordered appellant to pay $1,500 in sanctions on or before September 28, 2009. The court ordered appellant to provide responses to the interrogatories, and to produce the documents that had been requested. Importantly for purposes of the present appeal, the court ordered appellant to produce those documents at the law offices of Redwood's counsel in Sacramento on September 8, 2009. Finally, the court ordered appellant to pay an additional $1,500 in sanctions on or before September 28, 2009.
Appellant failed to comply with the court's orders although at first, that failure might be viewed as partially justified. The case had been set for trial for September 22, 2009 and on September 14, 2009, counsel for Redwood asked that the matter be taken off calendar because the case had been settled conditionally. But that excuse quickly evaporated. On December 7, 2009, counsel for Redwood notified the court that the settlement had collapsed and asked that the case again be set for trial.
On April 2, when appellant still had not complied with the court's discovery orders, Redwood filed a "motion for terminating sanctions." It argued a default judgment should be entered against appellant because he failed to comply with the court's orders requiring him to produce the documents requested and failed to pay the $3,000 in sanctions that had been imposed.
The trial court conducted a hearing on Redwood's motion on April 15, 2010. After hearing the parties' arguments, the court granted Redwood's motion and imposed terminating sanctions in an order filed on April 29, 2010.
II. DISCUSSION
Appellant contends the trial court erred when it imposed terminating sanctions.
Trial courts are granted broad discretion to determine what sanctions are appropriate for discovery abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Terminating sanctions, such as those imposed here, should not be imposed lightly. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279.) "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." (Id. at pp. 279-280.) A trial court's decision to impose sanctions will be reversed on appeal only where the court abused its discretion. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 765.) When making that determination, we must view the record in the light that is most favorable to the trial court's ruling and defer to its credibility determinations. (Ibid.)
Applying that standard, we find no abuse here.
Appellant plainly failed to comply with the court's August 26, 2009 discovery orders. Appellant did not pay the $3,000 in sanctions that the court had imposed. Appellant did not produce the documents that had been requested as he was required to do. The trial court reasonably could conclude that appellant's failure to comply was willful and that because appellant had previously failed to comply with his discovery obligations, less severe sanctions would not be effective. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280.) The court did not abuse its discretion when it imposed terminating sanctions.
The arguments appellant advances do not convince us the trial court erred. Appellant contends his failure to produce the documents as required at the office of Redwood's counsel was justified because Redwood's counsel agreed to have the documents copied at appellant's office. It is true that on August 25, 2009, counsel for Redwood sent a letter in which she agreed to copy the documents in question at appellant's office. But that was before the court's August 26, 2009 order requiring appellant to produce those documents at the office of Redwood's counsel. Indeed, on August 27, 2009, after, the court ruled, Redwood's attorney sent another letter to appellant withdrawing her prior offer and insisting that the documents be produced at her own office as the court had ordered. Under these circumstances, the trial court reasonably could conclude appellant's failure was not excused.
Next citing a comment he made at a July 10, 2009 hearing where he apologized to the court for not verifying his discovery responses correctly, appellant contends he "thought he had cured his obligation as to verification." The comments appellant has identified simply cannot be read to mean appellant's failure to verify his responses properly was somehow cured. Indeed, the court's August 26, 2009 order unambiguously ordered appellant to provide responses to those interrogatories. Appellant's argument on this point is unconvincing.
Appellant's comment is as follows: "I apologize if I didn't – but I have the statement saying that the statements are . . . true and correct. And I signed that. I didn't know whether that would be a verification or not."
Finally, appellant argues his failure to comply with the court's orders was excused by the settlement negotiations that were ongoing between himself and Redwood. But the record indicates that settlement negotiations collapsed in December 2009, several months before Redwood filed its motion for terminating sanctions. The trial court could and impliedly did conclude appellant did not have a valid excuse for failing to comply with its discovery orders.
In sum, we conclude the trial court did not abuse its discretion when it imposed terminating sanctions for appellant's repeated discovery abuses.
III. DISPOSITION
The judgment is affirmed.
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Jones, P.J.
We concur:
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Simons, J.
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Needham, J.