Case Number: BC697072 Hearing Date: January 29, 2019 Dept: 2

Defendant’s Motion for an Order Imposing Terminating Sanctions or, in the Alternative, Issue/Evidence Sanction Against Plaintiff for Failure to Comply With Court Order and for Monetary Sanctions, filed on 1/2/19, is GRANTED IN PART.

Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting from the lack of information. Midwife v. Bernal (1988) 203 Cal. App. 3d 57, 64. The Court is bound to tailor the sanction to accomplish the discovery sought. Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35. Terminating sanctions are appropriate where there is outright refusal to comply with discovery obligations. Deyo v. Kilbourne, (1978) 84 Cal. App. 3d 771, 793. An order imposing sanctions cannot go further than is necessary to accomplish the purpose of discovery. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615.

On 10/15/18, the Court ordered Plaintiff to provide a further response to the Special Interrogatories at issue. Motion, Ex. A. Consistent with Plaintiff’s obligations to respond fully under Cal. Code Civil Procedure §2030.220(c), Plaintiff is required to state if she lacks sufficient knowledge to respond fully, however, Plaintiff remains obligated to make a reasonable and good faith effort to obtain the information by inquiry to other persons, except where the information is equally available.

Plaintiff’s single contact to the Dominguez Law Firm to obtain her records does not constitute a “reasonable and good faith effort to obtain the information by inquiry to other persons.” Declaration of Kevin Conlogue, ¶ 12.

Plaintiff did not make a reasonable and good faith effort to obtain the information until after receiving Defendant’s Motion for Terminating Sanctions. At that point, Plaintiff’s counsel made a second effort to obtain the information from the Dominguez Law Firm, left a voice mail, and mailed and faxed a letter on 1/7/19, demanding information by 1/11/19. Opposition, 4:8-22.

At that point, Plaintiff’s counsel received a response from the Dominguez Law Firm, and was able to verify that records had been provided to Second Image National Copy Service. Opposition, 5:1-4. These efforts should have been made in the first instance in order to discharge Plaintiff’s obligation to make a reasonable and good faith attempt to obtain the information sought by Defendant.

While Plaintiff maintains that Defendant’s copy service, Second Image, has obtained the records from Dominguez Law Firm, Defendant disputes this contention. Reply 4:1-2. Rather, the copy service is coordinating with the law firm to copy the subpoenaed records. Id. At this stage, it appears the records are forthcoming, but only after considerable delay, since Plaintiff did not diligently attempt to obtain her own records from her prior law firm until after Defendant was forced to file this motion.

As Defendant observes in Reply, the fact that Defendant successfully obtained Plaintiff’s medical records from UCLA by subpoena does not discharge Plaintiff from her obligation to act in good faith under the discovery statutes. Reply, 4:11.

Ultimately, terminating sanctions are not warranted where there is no evidence of a refusal to comply.

The alternative request for issue or evidentiary sanctions is DENIED as it would be punitive in nature and would produce the same result as a terminating sanction in depriving Plaintiff of any opportunity to present evidence of her injuries. Therefore, such sanctions are not warranted under the circumstances.

The Court GRANTS the Defendant’s request to impose monetary sanctions of $1,110 against Plaintiff’s counsel, Kevin S. Conlogue, for the failure to make a reasonable and good faith effort to obtain the information at issue as ordered by the Court until Defendant was forced to incur costs and fees to prepare the motion. Cal. Code Civil Procedure § 2023.010(f), (g), and (h). Such sanctions are payable within thirty (30) days.

Moving party is ordered to give notice.