I. BACKGROUND  

Plaintiff Dawn Stevens (“Plaintiff”), a self-represented litigant, filed this action against defendant Richard Leopardi (“Defendant”) for civil harassment, assault, battery, trespass, and intentional infliction of emotional distress.  

Defendant now moves for terminating sanctions against Plaintiff to dismiss Plaintiff’s action with prejudice for failing to serve verified discovery responses in compliance with the Court’s November 16, 2023 Order. In the alternative, Defendant requests issue and/or evidentiary sanctions.  

Any opposition was due on or before March 13, 2024; none was filed.   

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, supra, 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.)   

On November 16, 2023, the Court heard Plaintiff and Defendant’s oral arguments regarding Defendant’s motion to compel Plaintiff to serve verified responses to set one of form interrogatories, special interrogatories, and request for production of documents. Further, the matter was heard regarding Defendant’s motion to deem his request for admissions, set one, admitted against Plaintiff. The Court’s final ruling had ordered Plaintiff to serve responses, without objections, to Defendant’s set one of form interrogatories, special interrogatories, and request for production of documents, within 10 days of the hearing. (Min. Order, Nov. 16, 2023.) The motion for the requests for admission be deemed admitted against Plaintiff was denied, and monetary sanctions related to the compel initials were denied. (Ibid.) However, sanctions in the amount of $490 were imposed in relation to the requests for admission. (Ibid.) 

Defendant argues that verified discovery responses or the sanctions payment have not been received by Defendant to date in violation of the November 16, 2023 Order. At this time, the Court finds the imposition of terminating sanctions unwarranted. Although Plaintiff did not oppose this motion, as a self-represented litigant, she has made appearances at the hearings on this matter. The Court is unable to conclude, at this time, that Plaintiff’s failure to comply with the Court’s Order was willful or that she is unwilling to litigate her action. “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.) Although there is some merit to Defendant’s alternative request for evidentiary and/or issue sanctions, the Court finds it appropriate to award lesser sanctions of monetary sanctions first against Plaintiff prior to resorting to evidentiary/issue sanctions. 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].) 

III. CONCLUSION 

Defendant’s motion for terminating and/or issue/evidentiary sanctions is DENIED without prejudice. However, the Court finds monetary sanctions warranted. Defendant is awarded 2 hours for the motion at $215 per hour as attorney’s fees, and one motion filing fee of $60 as costs. 

Sanctions are imposed against Plaintiff. Plaintiff is ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $490, within ten (10) days. 

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 25th day of March 2024