1.DEFENDANT’S MOTION TO DISMISS

The Court takes judicial notice of its minute order dated 7/25/13, in which the plaintiffs, K. Borgeson and C. Scineaux, were ordered to submit to deposition within four months of the order. A copy of said order was not included with Defendants’ moving papers here.

The only demonstrated violation of a court order relates to the failure to appear for deposition. With respect to written discovery, the Court only ordered plaintiff Scineaux to provide responses to Dr. Wickham and Bixby’s written discovery after the current motion was filed, thus, it is not reasonable for that order to form the basis for this motion.

The trial court has broad discretion in selecting which discovery sanction to impose for a party’s failure to comply with the court’s order. However, California generally adheres to a “lesser sanction first” philosophy. Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293; Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. Discovery sanctions “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.” Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. “A decision to order terminating sanctions should not be made lightly.” Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280, overruled on another point, Mileikowsky v. West Hills Hosp. and Medical Center (2009) 45 Cal.4th 1259, 1273.

In lieu of a terminating sanction, the Court will order a lesser sanction at this time. Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 993-4; Liberty Mut. Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.

The Court will order plaintiff Scineaux, a second time, to submit to a deposition by Defendants not later than March 20, 2014. Defendants shall cause a notice of ruling to be separately served on Plaintiff Scineaux, with a proof of service to be filed with this Court within the next three days. The notice of ruling shall include the following warning: “Failure to comply with the Court’s order will likely result in the dismissal of your complaint, upon a noticed motion.”

The request for monetary sanctions is denied at this time. In support of the request, Defendants have referred the Court to CCP § 2030.290 but that section governs interrogatories, CCP § 2031.300 which governs inspections demands, and § 2033.280 governing RFAs. (See Defs’ Not. at 2:1 and Mem. at 7:22-8:3). Those types of discovery are not at issue here and the only noticed violation of a court order relates to a failure to appear for deposition. Defendants cite CCP § 2023.030 as well, but that section authorizes monetary sanctions “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title…” It thus refers to other sections of the Discovery Act as the “enabling provision” for a monetary sanction. Finally, CCP § 2023.010 is a general description of misuses of discovery but is not by itself a basis for awarding a sanction. Cf. CCP §2025.450(h). The authorities cited by Defendant do not support the request for a monetary sanction in this matter.