The court denies without prejudice Defendants Deying Chen and Glory Cindy, LLC’s motion for terminating sanctions or alternatively evidentiary sanction as to Plaintiff Mark Olsen.

As an initial matter, the discovery orders issued in this case pertain only to Defendant Denying Chen. Thus, as to Defendant Glory Cindy, LLC, there have been no violations of any court orders that could warrant discovery sanctions.

The motion was only directed at one of the two Plaintiffs.

Legal Standard

Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court’s discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (Code Civ. Proc., § 2031.300, subd. (c) [requests for production].)

The court has broad discretion in selecting the appropriate penalty when a party refuses to obey a discovery order. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) “Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly.” (Ibid.) The trial court should tailor the sanction for such conduct to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)

The court cannot impose sanctions as punishment; the choice of sanctions should not give the moving party more than it would have gotten had the discovery been responded to. (Doppes v. Bentley Motors, Inc., supra, 74 Cal.App.4th at p. 992.) 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. (Ibid.; Lopez v. Watchtower Bible & Tract Society of New York, Inc., supra, 246 Cal.App.4th at p. 604.) It is only when a party persists in disobeying the court’s orders that the ultimate sanctions of dismissing the action or entering default judgment, etc. are justified. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771.)

Analysis

Here, on January 22, 2021, the court granted Defendant Deying Chen’s unopposed motions to compel Plaintiffs Mark Olson’s and Tawnie Olson’s responses to form interrogatories, special interrogatories, and request for production of documents, sets one. (ROA 73.) Defendant properly served notice of this ruling. (ROA 95.) Despite notice, as of the date of the Motion, neither Defendant has complied with this Order. (Becker Decl., at ¶ 6.)

On January 29, 2021, the court granted Deying Chen’s unopposed motions to deem facts admitted in response to its requests for admission propounded on Plaintiffs Mark and Tawnie Olson. (ROA 88.)  As to the request for admissions, Defendants already obtained relief in the form of deeming the requests admitted.

The discovery at issue was directed at the claims in Plaintiffs’ Complaint. However, the record does not support the imposition of the “severest” sanctions. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 174-176 [affirming trial court’s dismissal of plaintiff’s action for disobedience of its order to follow discovery where plaintiff’s vigorous and persistent resistance to provide discovery was vividly demonstrated in the record]; Williams v. Travelers Ins. Co. (1975) 49 Cal.App.3d 805, 810 [affirming trial court’s imposition of terminating sanctions where record was “replete with evidence of continuous use of obstructive tactics by [the plaintiff] during earlier pretrial proceeding” and the plaintiff failed to comply with multiple discovery orders despite being given additional opportunities to provide further answers].)  Trial is scheduled for October 18, 2021.  The discovery cut-off deadline is approximately three months away.  A terminating order as to one Plaintiff would be of limited value.  Accordingly, the court denies the request for terminating sanctions against Plaintiff Mark Olson, without prejudice.

Lesser sanctions of evidentiary or issue sanctions would have been appropriate. But there is no separate statement filed. A motion for issue or evidentiary sanctions must be accompanied by a separate document setting forth the particular discovery requests at issue, the responses thereto, and the reasons why such sanctions should be imposed. (Cal. Rules of Court, rule 3.1345(a)(7); Code Civ. Proc., §§ 2030.300, subd. (b)(2), 2031.310, subd, (b)(3), 2033.290, subd. (b)(2).)  Furthermore, monetary sanctions were not properly requested. (Code Civ. Proc., § 2023.040.)

Should Plaintiffs continue to fail to obey the discovery orders, more severe sanctions (including issue, evidentiary, and terminating sanctions) may be in order.

Defendants shall give notice of this ruling.