Judge: Sandy N. Leal, Case: 2021-01229632, Date: 2023-08-17 Tentative Ruling

Motion for Terminating Sanctions

The Motion of defendants Jeffrey John Seib and Madison Paige Seib for terminating sanctions against plaintiff Angela Jasmin Martinez Sandoval is DENIED.

“[T]erminating 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.) “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ‘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.” ’ [Citation.] 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. ‘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.’ [Citation.]” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes) (Footnote 5 omitted.) Before issuing terminating sanctions, the court should usually grant lesser sanctions such as orders staying the action until the derelict party complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party.  Deyo v. Kilbourne, 84 Cal. App. 3d 771, 796 (1978).

Defendants have shown that Plaintiff has violated the Court’s two prior Orders. Specifically, on October 20, 2022, the Court ordered Plaintiff to provide responses to Defendants’ Form Interrogatories (set one), Specially Prepared Interrogatories (set one) and Demand for Identification and Inspection of Documents (set one) within 30 days of the Court’s order and to pay sanctions in the amount of $270. (Kothary Decl., ¶ 4.) Plaintiff failed to comply with the Court’s October 20, 2020 Order. (Kothary Decl., ¶ 5.)

Thereafter, Defendants filed a Motion for Terminating Sanctions. On April 27, 2023, the Court denied the motion, but ordered Plaintiff to comply with the Court’s October 20, 2020 Order within 10 days of service of notice of ruling. (Kothary Decl., ¶ 5.) Defendants have shown that the Notice of Ruling was served upon Plaintiff on April 27, 2023. (Kothary Decl., ¶ 6, Ex. A.) Plaintiff has still not complied with the October 20, 2020 Order. (Kothary Decl., ¶ 7-8.)

The moving party must not only show that there was violation of the court’s order, but that such violation was willful. (Doppes, supra, 174 Cal.App.4th at 992.) Defendants have not shown that the violation of the Court’s orders was willful. Accordingly, Defendants’ request for terminating sanctions is DENIED.

There has been no incremental approach to sanctions and lesser sanctions of issue, evidentiary, and/or monetary sanctions would have been appropriate. However, Defendants have not requested such relief.

Plaintiff is ordered to comply with the Court’s 10/20/22 order within 20 days’ notice of this ruling. The Court warns Plaintiff that failure to comply will result in more severe sanctions, which may include terminating sanctions.

Defendants to give notice.