Rafael Herrera v. FCA US LLC

Plaintiff seeks an order imposing monetary and evidentiary sanctions on Defendant pursuant to Code of Civil Procedure Section 871.26, subdivision (j).

Parties may conduct initial depositions within 120 days after the filing of the answer. (§ 871.26, subd. (c).) This includes “the person who is most qualified to testify on the defendant’s behalf” where it is not a natural person. (§ 871.26, subd. (c)(2).) Unless the noncomplying party shows good cause, the court shall impose a “two-thousand-five-hundred-dollar ($2,500) sanction against the defense attorney . . . for failure to comply with . . . subdivision (c),” paid within 15 business days. (§ 871.26, subd. (j)(2).)

Defendant does not dispute it missed the deadline imposed by Section 871.26. (McKay Decl. ¶¶ 3-5.) Instead, it argues that it had good cause due to “an administrative error.” (McKay Decl. ¶ 5.) The Court is not convinced this is good cause. Indeed, allowing the broad and arguably vague term “administrative error,” by itself, to establish good cause runs the risk of completely nullifying the statutory obligation. And Defendant provides no persuasive authority that the discovery scheme enumerated in section 871.26 requires a showing of bad faith or prejudice or is subject an exception for “substantial justification.”

Plaintiff’s motion for monetary sanctions in the amount of $2,500 is GRANTED, to be paid by Defendant’s counsel within 15 business days.

Plaintiff also seeks evidentiary sanctions. For a “defendant’s repeated noncompliance with subdivision (b), (c), or (d), a court shall order that evidentiary sanctions attach” precluding the defendant from introducing certain evidence at trial. (§ 871.26, subd. (j)(4).) Plaintiff argues that Defendant’s counsel’s noncompliance in other actions constitutes repeated violations, referring to six cases where Defendant, represented by the same counsel, allegedly failed to comply with Section 871.26.

The court disagrees. While counsel’s frequent noncompliance with Section 871.26, if true, would be concerning, the Court has found no authority authorizing evidentiary sanctions for violations in other cases, and Plaintiff has cited none. Accordingly, Plaintiff’s motion for evidentiary sanctions is DENIED.

Plaintiff shall prepare and submit the final order, accompanied by the necessary Form EFS-020, within 10 days of the date of the hearing.

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