The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)
DEFENDANT SHOULD BE SANCTIONED FOR FAILING IN BAD FAITH TO SUBMIT TO AN AUTHORIZED FORM OF DISCOVERY
Nothing excuses the fact that defendant has refused to commit to a date for his deposition.
This assertion highlights the fact that he has acted in bad faith and will continue to do so unless and until the Court orders him to appear for his deposition in this sexual harassment case. As stated above, there is no substantial justification for Defendant not to appear for his deposition before August 2006 and, therefore, sanctions are warranted. (C.C.P. §§2023 and 2025(j)(3)). Moreover, Ms. Brown has been forced to simply take Defendant’s word that he will be available in August. There is no guarantee that Defendant will suddenly become unavailable or on another extended business trip in August, especially in light of the fact that Defendant will not commit to a date in August for his deposition at this time.
California courts have long recognized the potential for discovery abuse and noted, We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious case or defense … (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) In adopting this theory, the court in Calcor Space Facility Inc. v. Superior Court (1997) 53 Cal.App.4th 216, added, Our observation of the day to day practice of law leads us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses. (53 Cal.App.4th at 219-220.)
Defendant’s dilatory tactics demonstrate the type of behavior strongly denounced by the court in Calcor. In sum, an award of sanctions in the amount of $2,475.00 is both mandatory and appropriate.
For the reasons set forth above, Plaintiff respectfully requests that this Court grant her Motion to compel and order Defendant to appear for his deposition forthwith. In addition, Plaintiff requests that this Court grant her request for sanctions in the amount of $2,475.00.