2017-00220291-CU-MC

Farah Naz Nasir vs. Macys Corporate Services, Inc.

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Stewart, Ronald M.

Defendant Macy’s West Stores, Inc., erroneously sued as Macy’s Corporate Services, Inc.’s Motion for Terminating Sanctions is unopposed but is denied.

On December 4, 2018, the Court ordered plaintiff to serve verified responses to Macy’s Form interrogatories and requests for production. Plaintiff was also ordered to pay sanctions in the amount of $190. The responses to the discovery were due on December 4, 2018. Plaintiff did not provide the court ordered responses nor did he pay the sanctions. (Declaration of Stewart)

Trial in this matter is set for April 2, 2019. Defendant’s Motion for Summary Judgment is set for hearing on March 1, 2019.

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. [Citations.]'” ( 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; Lopez, supra.)

A terminating sanction is denied at this time as it does not reflect the incremental approach to discovery sanctions. The sanctions awarded on December 4, 2018 were in connection with the court order deeming the requests for admission admitted pursuant to CCP 2033.280(c) and were not awarded for failure to respond to the form interrogatories and requests for production. There has only been one discovery motion ruled upon and one disobedience of a court order to provide the verified discovery responses on or before December 18, 2018.

However, the court orders plaintiff, for the second time, to serve verified responses to the form interrogatories and the requests for production on or before March 4, 2019. Defendant is still entitled to the responses that were ordered by the court on December 4, 2019.

Failure to obey this court order may expose plaintiff to more severe sanctions including monetary and terminating sanctions.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.