Scherrer v. Plaza Marina Commercial Corp.

California Court of Appeal Apr 1, 1971 No. Civ. 1300Published

Before: Gargano

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Holding. The court held that the trial court did not abuse its discretion in striking the appellant's answer and entering a default judgment against it for the willful and repeated failure of its president and counsel to appear for scheduled depositions.

Issues

Whether the trial court erred in striking the appellant's answer and entering a default judgment for failure to appear at depositions under Code of Civil Procedure section 2034, subdivision (d).
Whether the imposition of the ultimate sanction of default requires the prior unsuccessful imposition of lesser sanctions.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The ultimate sanction of default against a litigant who willfully fails to appear for the taking of his deposition is a drastic penalty which should be sparingly used; ordinarily, it should be used only when lesser sanctions have failed”

“the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction authorized by subdivision (d) of section 2034.”

“In the final analysis, the test on appeal is whether the lower court abused its discretion, and each case must be decided on its own facts, with the appellant having the burden of showing an abuse.”

Opinion

GARGANO, J.

The only issue presented in this appeal is whether the trial judge erred in striking appellant’s answer to respondent’s cross-complaint and in entering a default judgment in favor of respondent pursuant to the provisions of subdivision (d) of section 2034 of the Code of Civil Procedure. Subdivision (d) reads in pertinent part as follows: “If a party or a person for whose immediate benefit the action or proceeding is prosecuted or defended or anyone who at the time the deposition is set is an officer, director, or managing agent of any such party or person willfully fails to appear before the officer who is to take his deposition, after said party or his attorney has been served with a proper notice in accordance with the provisions of subdivision (a)(4) of Section 2019 of this code, . . . the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose such other penalties of a lesser nature as the court may deem just, and may order that party or his attorney to pay to the moving party the reasonable expenses in making such motion, including reasonable attorney’s fees,”

The chronology is this: On February 3, 1969, Mildred D. MacDonald filed suit against respondent to recover a real estate commission in connection with the sale of certain real property by respondent to appellant. Thereupon, respondent cross-complained against appellant seeking indemnification for any judgment the plaintiff secured against her in the main action; respondent alleged that appellant had agreed to hold her harmless from the payment of any commission due to Mrs. MacDonald by reason of the sale.

[523]

On August 14, 1969, notice was duly served for the taking of the deposition of appellant’s president, Roland Vazquez; the deposition was to take place on August 27, 1969; neither Vazquez nor appellant’s attorney appeared at the time and place set for that deposition. Thereafter, the cause was set for pretrail conference, but no appearance was made on behalf of appellant.

On September 24, 1969, respondent served a notice for the taking of Roland Vazquez’s deposition on October 6, 1969. Again, both Vazquez and appellant’s attorney failed to appear.

Scherrer v. Plaza Marina Commercial Corp.

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GARGANO, J.

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