Case Name: Actian Corporation vs Enziime, LLC, et al.
Case No.: 16CV292128

Plaintiff filed a motion for terminating sanctions against Defendant Enziime, LLC following the Court’s grant of orders to compel responses to discovery, on the grounds that Plaintiffs did not serve responses to the discovery within the time period ordered.
The Court ordered that Plaintiffs serve responses to discovery within fifteen days after the hearing. However, the order was not served on Defendant until December 30, 2016, and was not served at the address of record found in the Court file for Defendant, but instead on the Corporate agent for service of process. Pleadings must be served on the party at the address of record, in this case as listed on the substitution of attorneys. (CCP 1013(a).) The motion was served properly on the address of record for Defendant, but not the notice of order which was critical for a party that did not appear at the hearing. The failure to properly serve the order alone is fatal to this motion.

Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102). Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293). In exercising this discretion, the court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992).

The trial court should “attempt to tailor the sanction to the harm caused by the withheld discovery.” Id. The Court’s discretionary authority in determining the appropriate sanction is limited by the principle that discovery sanctions are meant to be remedial rather than punitive. (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381). The discretionary imposition of a sanction is proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought, but not when it places the prevailing party in a better position than if discovery had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958).

Finally, non-monetary sanctions are imposed upon incremental bases depending upon the severity of the violation. (See Doppes, supra, 174 Cal.App.4th at 992). “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” Id. Here, Plaintiff went straight to terminating sanctions, without otherwise establishing or considering whether other sanctions would first be appropriate.

Ordering terminating sanctions is not an action this Court can undertake without careful consideration; and only in circumstances where a violation is willful, preceded by a history of abuse and the evidence shows that a less severe sanction would not produce compliance with the discovery rules. (See Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516; Sec. Pac. Nat. Bank v. Bradley (1992) 4 Cal. App. 4th 89 (Overturning trial court on error for granting terminating sanctions where defendant’s failure to file separate responsive statement was not willful)). “[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)

Accordingly, the motion for terminating sanctions is DENIED. Although Plaintiff also seeks issue or evidence sanctions, such a motion must specify the issues, facts or evidence that should be determined against the party. (CCP 2023.030(b).) Plaintiff’s motion fails to do that, and so is DENIED.