Judge: Melissa R. Mccormick, Case: Therrien v. Fishman, Date: 2022-09-08 Tentative Ruling

Defendant Robert Goodman Fishman’s Motion for Terminating Sanctions

Defendant Robert Goodman Fishman moves for an order dismissing this case as a terminating sanction for plaintiff James Therrien’s failure to comply with the court’s January 6, 2022 and March 3, 2022 orders directing Therrien to provide responses to defendant’s form interrogatories, special interrogatories and requests for production, and to pay defendant sanctions.  Defendant’s motion is denied for the following reasons. 

Disobeying a court order to provide discovery is a misuse of the discovery process.  Cal. Civ. Proc. Code § 2023.010(g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.  A trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery.  Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.  The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  Id.  If a lesser sanction fails to curb misuse, a greater sanction is warranted:  continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.  Id.  Where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, a trial court is justified in imposing the ultimate sanction.  Id.

Because terminating sanctions are drastic, it is generally recognized that “terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.”  R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.  Courts contemplating imposition of a terminating sanction should generally engage in a “balancing process,” McGinty v. Superior Ct. (1994) 26 Cal.App.4th 204, 214, taking into account the nature of the discovery abuse, whether it was part of a pattern, whether it was willful and without substantial justification, Sauer v. Superior Ct. (1987) 195 Cal.App.3d 213, 224-25, whether lesser sanctions would be effective to produce the discovery sought, the extent of the prejudice to other party, and whether the sanction would result in a “windfall” to the other party.  McGinty, 26 Cal.App.4th at 214. 

In most cases upholding a terminating sanction, there was substantial evidence of the party’s repeated and willful violations of its discovery obligations and a demonstrated intent not to comply.  See, e.g., R.S. Creative, 75 Cal.App.4th at 496; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1247; Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279, overruled on other grounds in Mileikowsky v. West Hills Hosp. & Med. Ctr. (2009) 45 Cal.4th 1259.  In each of these cases, the common element was the party's continuous obstructive and willful conduct in the discovery process.

The court does not find that the record here supports a terminating sanction at this time.  Defendant’s motion does not set forth substantial evidence of plaintiff’s continuous obstructive and willful conduct in the discovery process warranting the ultimate sanction.  The motion instead indicates plaintiff may not intend to pursue the case.  If that is the situation, defendant has other mechanisms available to resolve the case.

Defendant’s request for monetary sanctions to reimburse defendant for expenses incurred filing this motion is denied.

The trial remains scheduled for October 31, 2022 at 9:00 a.m. in Department C13.

Defendant to give notice.