2012-00128052-CU-MM

Jimmy Houston vs. Roderick Sanden

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Doyle, Thomas J.

Defendant William Conrad, M.D.’s motion for terminating sanctions is denied.

The Court considered Defendant’s untimely filed reply as it appears that while
Plaintiffs’ opposition was timely filed, it was not timely served on Defendant.

On December 9, 2013, the Court ordered Plaintiffs Jimmy and Hilda Houston to
provide verified responses without objections to Defendant’s special and form
interrogatories, to provide a statement of damages and to produce documents in
accordance with their agreement to produce no later than December 19, 2013. At the
time the instant motion was filed, Plaintiffs had not served responses to the discovery.
In opposition, Plaintiffs assert that they have now served the subject responses,
though as seen from Defendant’s reply, only Plaintiff Jimmy Houston served responses
and Plaintiff Hilda Houston did not serve any responses. Plaintiffs’ counsel declares
that it was his fault that timely responses have not been served.

A failure to comply with a court order constitutes a misuse of the discovery process.
(CCP §2023.010(d),(g).) In ordering sanctions, the Court has broad discretion in the
selection of the appropriate sanctions to be applied under the factual circumstances.
Indeed a discovery sanction cannot place the propounding party in a better position
than they would have been in if they had received the requested discovery. (Puritan
Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884.) Further, California
courts have held that “[t]he 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. [Citations.]” (
Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782. Here, while Plaintiffs did
not comply with the Court order until after the instant motion was filed, they have at
least made an attempt to comply with the Court’s order. Indeed, Plaintiff Jimmy
Houston appears to have served the responses required by the Court’s order. While
Defendant complains in reply that the responses are inadequate (e.g., because some
question might have been unanswered or incompletely answered), to the extent that
they are inadequate in any manner, Defendant is free to move to compel further
responses. In these circumstances, a terminating sanction would place Defendant in a
better position than he would be in had he received the responses at an earlier date
and would result in an improper windfall. No lesser sanction was requested.

Further, while Plaintiff Hilda Houston may not have served responses, the Court
declines to enter a terminating sanction as to her at this time. Given the fact that
Plaintiff Jimmy Houston served responses, the Court will allow Plaintiff Hilda Houston
an additional opportunity to serve the required responses. No later than May 9, 2014,
Plaintiff Hilda Houston shall serve the verified responses, without objections, to
Defendant’s discovery as originally ordered by the Court on December 9, 2013.
Plaintiff Hilda Houston’s failure to serve the discovery may subject her to sanctions,
including terminating sanctions.