2017-00217551-CU-PA

Rickey Macfarlane vs. Vernard Sims

Nature of Proceeding: Motion to Dismiss

Filed By: Woo, Peggy L.

Defendant Vernard Sims’ unopposed motion to dismiss and for monetary sanctions is ruled upon as follows.

On November 20, 2018, this Court granted Defendant’s unopposed motion to compel self-represented Plaintiff Rickey MacFarlane’s discovery responses. Plaintiff was ordered to provide responses, without objections, to Defendant’s request for production (set three), supplemental interrogatories (set one) and supplemental request for production of documents (set one) no later than December 10, 2018. No sanctions were awarded. Defendant seeks terminating on the basis that Plaintiff has not provided the Court ordered responses.

Here the Court finds that the drastic remedy of terminating sanctions, is not yet warranted at this time. “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 793) The discovery sanction cannot put the propounding party in a better position than they would have been in if they had received the discovery. ( Puritan Insurance Co. v Superior Court (1985) 171 Cal. App.3d 877, 884.)

Here, the motion is premised on the failure to provide responses to request for production (set three), supplemental interrogatories (set one) and supplemental request for production of documents (set one) as ordered by the Court on November 20, 2018. No sanctions have been previously imposed for the failure to provide the responses. The Court finds that the failure to comply with the discovery order in this case does not yet justify the drastic remedy of terminating sanctions. To that end, there do not appear to be any earlier discovery orders which Plaintiff has failed to comply with.

Imposing the terminating sanction requested here would be punitive in light of the above circumstances and would be inconsistent with the incremental approach to discovery sanctions.

However, given the delay in complying with the Court’s discovery orders, the Court

finds that a modest award of monetary sanctions is appropriate. Defendant is awarded
monetary sanctions from Plaintiff Ricky MacFarlane in the amount of $322.80
($131.40/hr x 2 hr + $60 filing fee). Sanctions are to be paid on or before March 8,
2019. If sanctions are not paid by that date, Defendant may prepare a formal order
granting sanctions for the Court’s signature, and the order may be enforced as a
separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

In addition, the Court will again order that Plaintiff serve verified responses without objections to the request for production (set three), supplemental interrogatories (set one) and supplemental request for production of documents (set one) as previously ordered by the Court. Responses shall be served no later than March 1, 2019. Plaintiff’s failure to comply with this order may lead to an inference that

Plaintiff has abandoned the action and may result in the imposition of serious sanctions, including terminating sanctions.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is r