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Rondinelli v. Ralphs Grocery Company11/17/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Francisco Rondinelli appeals from the order denying his Code of Civil Procedure section 473 motion to set aside the dismissal of his case. Plaintiff contends he submitted sufficient evidence to warrant setting aside the dismissal. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
On February 23, 2001, plaintiff filed a complaint for negligence and premises liability alleging that he had been injured as a result of a slip and fall accident at one of defendant Ralphs Grocery Company's ("Ralphs") stores.
Plaintiff consistently failed to respond to discovery. On July 31, the court granted Ralphs' motions to compel responses to form interrogatories, special interrogatories and request for production of documents and sanctioned plaintiff and his attorney $736.
After plaintiff ignored the court's order and failed to provide answers within the required 10 days, Ralphs filed a motion to dismiss for violation of the court's order. Ralphs voluntarily took the motion off-calendar and filed a motion to compel further responses after plaintiff agreed to appear for deposition and provided some responses, even though the responses were inadequate and failed to provide information within plaintiff's knowledge. For example, plaintiff denied sufficient knowledge to answer interrogatories concerning whether he had prior personal injury claims, prior injuries, or pre-existing disabilities at the time of the subject incident. Plaintiff did not answer questions whether he had any personal knowledge of facts suggesting Ralphs had notice of the alleged dangerous condition and failed to provide contact information for the one percipient witness, who was also his best friend and who thereafter transported and accompanied plaintiff to every court hearing.
Thereafter, plaintiff failed to appear for his deposition on three separate occasions; each time Ralphs cooperated in an effort to reschedule the deposition so that it could be obtained without seeking a court order. Ralphs eventually had to seek a court order. The court granted Ralphs' motion to compel plaintiff to appear for deposition and sanctioned plaintiff and his attorney $888, which was never paid. The court warned plaintiff failure to appear would result in the dismissal of his case with prejudice.
Plaintiff still continued to refuse to provide further responses to written discovery or appear for deposition. After several meet and confer letters and numerous phone calls, Ralphs was forced to bring motions. The court ordered plaintiff to provide further answers and sanctioned plaintiff and his attorney $851, which also has not been paid. The court ordered plaintiff to provide further answers before the court-ordered deposition on November 20. Plaintiff was present in court when the court made the orders. After plaintiff failed to comply with the orders, Ralphs sought terminating sanctions.
On December 4, the court granted the motion of plaintiff's counsel to withdraw, but gave plaintiff one last chance and continued the motion for terminating sanctions to January 2, 2002. The court ordered plaintiff, who was present in court, to provide further verified answers to the discovery requests within 10 days and sanctioned plaintiff $3,000, which was never paid. Plaintiff failed to provide further answers and failed to appear for his no
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