Terminating Sanction Was Too Drastic, C.A. Holds

Friday, December 16, 2016

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Terminating Sanction Was Too Drastic, C.A. Holds

By a MetNews Staff Writer

Imposition of a terminating sanction was too drastic a measure in a case where an attorney failed to comply with a discovery order and the 81-year-old plaintiff, who was in poor health and had a language barrier, was forced to take over as her own counsel when he abandoned her, the Court of Appeal for this district held yesterday.

The opinion, which was not certified for publication, was written by Acting Justice Virginia Keeny, a Los Angeles Superior Court judge sitting on assignment. It reverses Los Angeles Superior Court Judge Gregory Keosin.

Plaintiff Rima Manasserian-Virabyan’s attorney, B. Kwaku Duren, failed to provide discovery responses in a slip-and-fall case. The defendant sought terminating sanctions.

A hearing on its motion was heard after Manasserian-Virabyan substituted herself in as attorney. She failed to file opposition or appear at the hearing.

Keosin granted the motion, after which the plaintiff filed a motion for relief under Code of Civil Procedure §473(b). She explained in her declaration that Duren had ceased representing her and refused to give her the file in the case.

Manasserian-Virabyan also pointed to her own infirmities.

Keosin denied the motion, citing prejudice to the defendants and the plaintiff’s failure to attach to her motion responses to the discovery requests.

Keeny wrote:

“The record here does not support the conclusion that a lesser sanction would be ineffective or that the misconduct was so extreme as to justify the dismissal of the action as a first measure. Instead, the record shows that the trial court had other means available to remedy the discovery misconduct. For example, the court could have stayed further proceedings by plaintiff until she obeyed the discovery order, and set an order to show cause regarding dismissal of the complaint. The court could have imposed a monetary sanction to secure compliance with its original order, or fashioned evidentiary or issue sanctions to restrict the introduction of evidence withheld from discovery….We conclude that imposing the ultimate sanction of dismissing the complaint in lieu of such a lesser sanction was an abuse of discretion. On remand, the court has broad discretion to impose an appropriate lesser sanction after full consideration of the plaintiff’s failure to comply and any explanation therefor.”

The case is Manasserian-Virabyan v. Muradyan, B265877.

Corey Evan Parker was Manasserian-Virabyan’s lawyer on appeal. Christina F. Michael and Amy Volk of Diederich & Associates represented the defendants.

Duren is facing possible disbarment.