2016-00191819-CU-CO

Michael Freedman vs. State of CA Health Benefit Exchange

Nature of Proceeding: Motion for Sanctions

Filed By: Bridges, John C.

Defendant State of California, by and through Health Benefits Exchange’s Motion for Sanctions for Disobedience of Court order is granted as to monetary sanctions but otherwise denied.

Plaintiff disobeyed the court’s order of November 3, 2017 requiring plaintiff to serve further responses to Defendant’s Demand for Identification and Production to Plaintiff, Set One.

A request for sanctions shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. CCP 2023.040. The notice of motion does not comply with this section in that it does not specify the type of sanction sought. However, because plaintiff has responded to the requests made for specific sanctions such as terminating, evidence, and monetary, the Court is ruling on the merits of the motion rather than denying it on the procedural ground of insufficient notice.

The memorandum of points and authorities request the following sanctions: “Terminating sanctions, alternatively an evidentiary sanction that plaintiff is precluded from presenting evidence of damages at trial, and monetary sanctions in the amount of $340, representing the attorneys fees expended in bringing this motion.”

Plaintiff has filed an opposition in which he states that he has been unable to comply with the order because he has been working 12-16 hours a day to attend to his health insurance enrollment business. He states the health insurance deadlines have now passed, freeing up his time to provide compliant responses. He states that he intends to provide responses before the time of the hearing.

The Court denies the motion for terminating and evidentiary sanctions because these sanctions are overly harsh and punitive given plaintiff’s stated intent to comply with the order by January 4, 2017.

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.)

Terminating and evidentiary sanctions are denied at this time as this would not reflect the incremental approach to discovery sanctions. However, Defendant is entitled to a second court order to compel the further responses that were ordered by the court on November 1, 2017. Plaintiff is ordered to serve verified further responses to the

requests for production, without objections, and provide a privilege log, on or before January 20, 2018.

The Court is grants the request for monetary sanctions to compensate defendant for bringing this motion, as it was only after the motion was filed that plaintiff made efforts to comply with the court order. Plaintiff is ordered to pay to defendant $340 pursuant to CCP 2031.310(i). Sanctions are to be paid on or before February 5, 2018.