2015-00187294-CU-PA

Kellie Marie Maier vs. Jacob McQuirk

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Bae, Tina

** If any party requests oral argument, then the hearing will take place at 9:00 AM in this department on Wednesday, March 14, 2018 . If this date is inconvenient for the parties, they shall meet and confer regarding a mutually convenient date and call the clerk in Department 54 by no later than 4:00 p.m on Monday, March 12, 2018 to notify the clerk of the new date. Any request for oral argument must still be made Monday, March 12, 2018, 4:00 p.m. (See Local Rule 1.06.) **

Defendant’s motion for terminating sanctions is unopposed but is DENIED.

Plaintiff disobeyed the Court’s 11/14/2017 order directing her to serve responses to Defendant’s form interrogatories, special interrogatories and document requests.

A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is tailored to the harm caused by the withheld 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. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605 .) Indeed, “the 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.” (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782.) The discovery statutes thus “evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Although in extreme cases a court has the authority to order a

terminating sanction as a first measure (see Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928-929; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10), a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective (see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516; Doppes, supra, 174 Cal.App.4th at p. 992; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399.)

A terminating sanction is denied as it does not reflect the incremental approach to discovery sanctions. However, Defendant is entitled to responses to the discovery. Plaintiff is once again ordered to serve verified responses, without objections, by no later than March 23, 2018.

Defendant did not request monetary sanctions.