2017-00205928-CL-PA

Kong Thao vs. Mckenzie Logan

Nature of Proceeding: Motion to Dismiss Action for Failure to Respond to Court Order

Filed By: Mino, Greg T.

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

Plaintiffs disobeyed the Court’s 9/15/2017 order directing Plaintiffs to serve responses to Defendant’s request for production of documents and form interrogatories.

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.)

The Court cannot conclude that terminating sanctions are warranted at this time. Thus, the motion for terminating sanctions is DENIED.

Plaintiffs are once again ordered to serve responses without objections by no later than February 15, 2018.

Defendant’s request for monetary sanctions against Plaintiffs is GRANTED in the amount of $210 ($150/hr x 1 hr + $60 filing fee.) Plaintiffs shall pay the sanction by no later than February 15, 2018. If Plaintiffs fail to pay the sanction by such date, then Defendant may lodge for the court’s signature a formal order awarding sanctions, which may be enforced as a separate judgment. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Defendant to provide notice of this ruling and file proof of service of same within five (5) calendar days.