I. Background  

Plaintiff Juan Romero (“Plaintiff”) filed this action against defendant Byeong Joon Lee (“Defendant”) for damages arising from an automobile collision.  

Defendant now moves for terminating sanctions against Plaintiff action on the grounds that Plaintiff failed to fully abide by the Court’s May 31, 2023 Order by not paying monetary sanctions.  

Plaintiff opposes the motion, and Defendant filed a reply. 

II. Terminating Sanctions  

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process.  A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment.  (Code Civ. Proc., § 2023.030(d).)  A violation of a discovery order is sufficient for the imposition of terminating sanctions.  (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.)   

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)  "A decision to order terminating sanctions should not be made lightly. But 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, the trial court is justified in imposing the ultimate sanction."  (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)  While the court has discretion to impose terminating sanctions, these 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."  (Deyo, 84 Cal.App.3d at 793.)  "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations."  (Ibid.)  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information.  (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].) 

Here, the ordered Plaintiff to serve further responses to Defendant’s form interrogatories, set one, nos. 4.1, 14.1, 20.3, and 20.4. (Min. Order, May 31, 2023.) Additionally, the Court ordered Plaintiff and Plaintiff’s counsel to pay monetary sanctions in the amount of $960 within 20 days of the Order. (Ibid.) Defendant acknowledges that Plaintiff has since served full and complete responses as ordered. However, at issue is that Plaintiff has failed to pay the ordered monetary sanctions, and thus Defendant seeks terminating sanctions on this ground.  

However, “[d]iscovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct.” (Williams v. Russ (2008) 167 Cal. App. 4th 1215, 1223.) To impose terminating sanctions at this time would place Defendant in a better position because Plaintiff did serve the requested discovery, and to dismiss Plaintiff’s for failure to pay a monetary sanction would be grossly disproportionate to the type of misconduct here. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [holding, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”].)  However, sanctions orders are enforceable as money judgments unless the court orders otherwise.  Thus, the remedy to enforce payment of monetary sanctions is to obtain and levy a writ of execution on assets of the debtor. (Ibid.)    

Accordingly, Defendant’s motion for terminating sanctions is DENIED.   

Moving party is ordered to give notice. 

PLEASE TAKE NOTICE: 

Dated this 5th day of March 2024