2011-00095474-CU-BC

James Smith vs. Anthony Lewis

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Smith, James

Plaintiff James Smith’s “motion for terminating sanctions for disobeying court orders to
provide verifications, documents and responses to discovery without objections and
abuse of discovery” is denied.

On April 3, 2013, the Court granted Plaintiff’s motion to compel Defendants Jim Clark’s
and Tania Chegini’s responses to request for production (set 6) and form
interrogatories (set 4). Specifically, they were ordered to serve “verified responses to
the discovery on or before April 15, 2013.” Defendants served responses but Plaintiff,
believing they were insufficiently verified because Defendants’ verifications stated: “I
declare under penalty of the laws of the State of California that the foregoing is true
and correct,” filed a motion to compel for disobeying the Court’s April 3, 2013, order.
The motion was denied on May 15, 2013. The Court ruled that “Defendants present
evidence that on April 12, 2013, they served responses to the discovery at issue, with verifications, on Plaintiff.”

On August 23, 2013, the Court granted Plaintiff’s motion to compel responses to his
special interrogatories (set 7), form interrogatories (set 5) and request for production
(set 7) and ordered Defendants to serve responses without objections. Plaintiff
thereafter filed a motion for terminating sanctions based on his contention that
Defendants failed to comply with the August Order because the discovery responses
were not properly verified. The Court denied the motion and gave Defendants until
October 18 to serve proper verifications. Plaintiff complains that the discovery
responses served in response to the August 23, order inappropriately contain
objections.

Plaintiff now seeks terminating sanctions, apparently on the basis that Defendants
have not complied with the Court’s August 23, order requiring responses to his
discovery without objections and that they have not served any documents. He also
argues that Defendants have still failed to comply with the April 3, order because their
verifications are insufficient.

Plaintiff’s request for terminating sanctions is denied. First, to the extent the motion is
based upon the purported failure of the Defendants to comply with the Court’s April 3,
order, the motion is an improper motion for reconsideration as the Court already ruled
on Plaintiff’s motion to compel compliance with that order on May 15, when it found
Defendants had complied with that order. Plaintiff has not demonstrated any new facts
or circumstances as required by CCP § 1008 which would permit him to renew that
motion.

To the extent the motion is based on the alleged failure to comply with the August 23,
order, it is also denied. The motion is denied despite the Court’s recognition that the
discovery responses provided do not comply with the August 23, order given that the
responses contain, as conceded by Defendants, “general objections in the preamble.”
Defendants are incorrect that Plaintiff is simply “quibble[ing] with the content of the
responses provided to him” which should have been the subject of a meet and confer
effort. Rather, the issue concerns whether the responses comply with a Court order,
for which no meet and confer effort is required. Thus, while Defendants are correct
that the body of the individual responses to each discovery request do not contain
objections, the preamble to each set of responses makes clear that the responses are
subject to the general objections. This fails to comply with the August 23, order
requiring that the responses contain no objections. Despite this non-compliance, the
Court finds that a terminating sanction is a drastic remedy that is not appropriate for
this noncompliance. 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.)
“The sanction of dismissal or the rendition of a default judgment against the
disobedient party is ordinarily a drastic measure which should be employed with
caution. [citation omitted.] The sanction of dismissal, where properly employed, is
justified on the theory the party’s refusal to reveal material evidence tacitly admits his
claim or defense is without merit.” (Id.) Here, Plaintiff fails entirely to show that a
terminating sanction is appropriate based on Defendants inclusion of objections in their
discovery responses, and Plaintiff did not request a lesser sanction.

Finally, the Court notes that Plaintiff also complains that Defendants have not provided
documents. However, the subject order only ordered Defendants to provide
responses to the discovery at issue, not documents. That is properly the subject of a
separate motion.

The motion is denied.

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.