Case Number: SC119706 Hearing Date: May 13, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

GARY SIPPLE,
Plaintiff(s),
vs.

PATRICK CURRY, ET AL.,

Defendant(s). )
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) CASE NO: SC119706

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR TERMINATING SANCTIONS

Dept. 92
1:30 p.m. — #39
May 13, 2014

Defendant, Patrick Curry’s Motion for Dismissal is Denied. Defendant’s Alternative Motion for Issue and/or Evidentiary Sanctions is Denied. The Court orders Plaintiff to provide supplemental responses to interrogatories 47, 48, and 54, in accordance with this order, within twenty days. No monetary sanctions are imposed.

Defendant propounded form interrogatories, special interrogatories, and RPDs on Plaintiff on 4/12/13. On 11/13/13, the Court granted Defendant’s motion to compel Plaintiff to respond to the subject discovery and imposed sanctions.

On 12/03/13, Plaintiff served responses to the outstanding discovery. Defendant appears to concede that the responses to form interrogatories and RPDs were proper. Defendant also appears to concede that most of the responses to special interrogatories were proper.

Defendant moves for terminating sanctions on the ground that Plaintiff improperly interposed objections to interrogatories 47 and 50 and provided insufficient responses to interrogatories 48, 49, and 50.

Pursuant to Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 776, the Court should typically impose lesser sanctions prior to awarding terminating sanctions. However, there are circumstances where imposition of terminating sanctions is appropriate without first imposing issue and/or evidentiary sanctions. See Laguna Auto Body v. Farmers Ins. Exch. (1991) 231 Cal.App.3d 481, 490-91.

The Court herein finds that terminating sanctions are too harsh for the discovery abuse at issue. Defendant could have moved to compel further responses to the subject interrogatories if he believed the responses were insufficient. As noted above, Plaintiff served compliant responses to the vast majority of the discovery at issue.

Defendant makes an alternative motion for issue and/or evidentiary sanctions “relating to plaintiff’s lack of communication with his mother.” Notice of motion, page 2, lines 4-5. Notably, this is a complaint for wrongful death arising out of the death of Plaintiff’s mother. At page 8, lines 1-7, Defendant argues that Plaintiff should not be permitted to support any claim that he had telephone communication with his mother in the year preceding her death or to oppose any claim that he lacked communication with his mother and therefore his damages due to her death should be limited. Defendant contends the subject interrogatories inquire about Plaintiff’s cell phone usage, and without the information Defendant cannot defend the claims relating to Plaintiff’s relationship with his mother.

The Court is not inclined to grant issue and/or evidentiary sanctions absent a ruling on a motion to compel further responses to the subject interrogatories. While it is true that the Court ordered responses without objections, the Court still finds the requested sanction overly-harsh and premature in light of the lack of a motion to compel further responses. See, for example, CCP §§2030.290(c) and 2030.300(d), permitting the Court to make such orders as are just under the circumstances. See also Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293, holding that sanctions must not go beyond those necessary to further the purposes of discovery, i.e. to compel disclosure and to compensate for costs incurred in enforcing discovery.

Because the Court’s prior order made explicitly clear that all responses must be without objections, the Court orders Plaintiff to serve a further response to interrogatories 47, 48, and 54. Plaintiff improperly responded to these interrogatories solely with objections.

The Court cannot, from the information provided, determine whether a further response to interrogatories 49 and 50 is required. Plaintiff responded to interrogatory 49 with “cannot recall.” Defendant refers to interrogatory 50 as a “follow-up interrogatory to interrogatory 49.” Plaintiff responded, “n/a.” The Court does not know what interrogatories 49 and 50 asked, and therefore cannot determine whether the responses are proper. Defendant cites CCP §2030.220 to argue that the responses are insufficient, but nothing in §2030.220 obligates a party to recall something that party cannot recall.

Defendant also seeks monetary sanctions in connection with the motion. Because the substantive relief sought by way of the motion is denied, the Court finds monetary sanctions are likewise not appropriate. The request for monetary sanctions is denied.

Dated this 13th day of May, 2014

Hon. Elia Weinbach
Judge of the Superior Court