CARIN MEMMER VS MIDTOWN CARPET COMPANY ET AL

Tentative Rulings

Case Number: BC636026    Hearing Date: November 27, 2019    Dept: 2

MEMMER v. MIDTOWN CARPET COMPANY, et al.

Defendant Massoud Gafouri’s Motion for Terminating Sanctions, filed on 10/31/2019, is DENIED without prejudice. The Court imposes monetary sanctions on Plaintiff in the amount of $560. Plaintiff is admonished that ongoing failure to comply with Court orders will result in further sanctions, up to and including evidentiary, issue or terminating sanctions.

On August 1, 2019, Defendant filed two motions to compel responses to Defendant’s supplemental interrogatories and supplemental demand for production of documents, set one and defendant’s special interrogatories and demand for production, set two. The motions were heard and granted. Plaintiff was ordered to serve her verified responses, without objection, within 30 days. The due date was October 3, 2019.

The Court subsequently granted Plaintiff an additional extension to October 17, 2019 to respond to the Supplemental Demand for Production of Documents for Inspection and Copying, Set Number One. The deadline for plaintiff’s response to defendant’s Special Interrogatories, Set Number Two and Supplemental Interrogatories, Set Number One, remained October 3, 2019.

On October 3, 2019, Plaintiff emailed an unsigned and unverified set of responses to Defendant’s Special Interrogatories, Set Number Two. The responses did not contain a response to special interrogatory number six. No responses to defendant’s supplemental interrogatories, set number one, were provided. Defendant was subsequently provided with documentation that Plaintiff was excused from work due to a medical issue until October 19, 2019.

On October 31, 2019, Defendant filed this motion for terminating sanctions. No opposition has been filed.

The Court is troubled by Plaintiff’s failure to comply with the Court’s orders in a timely fashion. However, “terminating sanctions are to be used sparingly because of the drastic effect of their application.” Department of Forestry & Fire Protection v. Howell (2017) 18 Cal. App. 5^th 154, 191-92. Sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.

Here, although Plaintiff has not complied with the Court’s order, she has made some progress toward compliance. Further, the documentation that Plaintiff provided to defense counsel supports the conclusion that compliance was interrupted for medical reasons. Thus, although Plaintiff’s behavior is unacceptable, the Court does not conclude that terminating sanctions are justified at this juncture.

The Court does find that monetary sanctions are justified and imposes further monetary sanctions in the amount of $560. Issue and evidentiary sanctions have not been sought, so the Court does not impose any such sanctions.

Plaintiff is admonished that she must comply with the Court’s previous orders, including providing signed verifications. If Plaintiff fails to comply within the next 30 days, Defendant may renew the motion for sanctions.

Moving party is ordered to give notice.