SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiff Nolvia Varela (“Plaintiff”) filed this action against Defendant Eureka Realty Partners, Inc. (“Eureka”) and L.J. Russell Construction for damages arising from falling into a hole due to an alleged improperly maintained construction area.  

Defendant Eureka now moves for terminating sanctions against Plaintiff to dismiss Plaintiff’s action by failing to pay monetary sanctions in compliance with the monetary sanction portion of the Court’s June 15, 2023 Order pertaining to the Defendant’s motions to compel responses discovery and request for monetary sanction. The motion is unopposed.  

 

II. Motion for 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.)  Terminating sanctions are appropriate when a party persists in disobeying the court's orders.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)   

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo, 84 Cal.App.3d at 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 Court’s June 15, 2023 Order ordered Plaintiff to serve verified responses, without objections to Eureka’s form interrogatories, special interrogatories, and request for production of documents. (Min. Order, June 15, 2023.) Additionally, Plaintiff and Plaintiff’s counsel, jointly and severally, were ordered to pay $824.95 to Eureka, by and through its counsel of record. (Ibid.) Defendant argues Plaintiff failed to pay the ordered monetary sanctions. Although not expressly stated, it appears that Plaintiff did in fact serve discovery responses, which was the substantive portion and purpose of  
Eureka’s motions to compel. Eureka requests terminating sanctions to dismiss Plaintiff’s Complaint with prejudice for not mailing the payment check that Plaintiff’s counsel stated he would send.  

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 Eureka in a better position because Plaintiff did serve the requested discovery, and to dismiss Plaintiff’s complaint with prejudice for failure to pay a monetary sanction would be grossly disproportionate to the type of misconduct here. Eureka’s Notice and moving papers request only the ultimate sanction and did not request a lesser sanction in the alternative. Therefore, the Court will not consider imposing a lesser sanction at this time.  

 

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

 

Moving Defendant is ordered to give notice. 

 

 

Dated this 5th day of December, 2023