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Terminating Sanction Was Extreme for Discovery Failure
Court Not Persuaded That Multiple Failures to Appear by Counsel or Late Compliance Justified Dismissal
By Kimber Cooley, Staff Writer
Div. Five of the First District Court of Appeal held yesterday that a terminating sanction was issued in error due to a failure to comply with a discovery order where there were no previous failures of that nature, despite sanctions having previously been imposed on the plaintiff’s counsel for failures to appear at case management conferences.
Presiding Justice Teri L. Jackson authored the unpublished opinion reversing a judgment of dismissal by Alameda Superior Court Judge Dennis Hayashi. Justices Mark B. Simons and Danny Y. Chou joined in the opinion.
The action was brought by Anthony Ratcliff. In June 2018, Ratcliff sued Corodata Corporation, owner of the other vehicle involved in an underlying traffic accident. After the complaint was filed, Ratcliff’s attorney, Richard Elliot Lehrfeld of Sacramento, missed four case management conferences and Hayashi ordered monetary sanctions against him in the amount of $150.
After the fourth no-show, the judge also dismissed the matter without prejudice.
Ratcliff moved to set aside the dismissal and submitted a supporting declaration by Lehrfeld offering various reasons for his failure to attend. Hayashi found counsel’s explanations “less than compelling” but set aside the dismissal.
In July 2019, Corodata served Ratcliff with form interrogatories and requests for production of documents, to which Ratcliff did not respond. On Jan. 29, 2020, the judge ordered Ratcliff to comply with the requests for discovery by Feb. 18 and imposed a $660 sanction.
Motion for Dismissal
Corodata moved for terminating sanctions based on the failure to provide responses. Ratcliff did not file opposition until three days before the hearing on the motion when Lehrfeld filed a declaration averring that he had timely served Corodata with the discovery responses on Feb. 10, 2020, and was unaware that they were not received.
The declaration stated that someone had broken into his office and vandalized it, causing him to be unable to locate the discovery responses he had filed. He was able to find the proof of service for the responses in another client’s file and “reconstructed” the missing documents in order to comply with the requests.
There was no dispute that Lehrfeld served the discovery responses after the terminating sanctions motion had been filed.
Hayashi nevertheless granted the motion and dismissed the action against Corodata for the second time, this time with prejudice, saying that she “does not find the proffered excuse for counsel’s failure to comply with the January 29, 2020 order to be credible.”
Extreme Sanction
Jackson noted that “[t]he Civil Discovery Act…provides trial courts with a range of sanctions that can be imposed on litigants for disobeying a court order to provide discovery, including monetary, evidentiary, issue and terminating sanctions.” However, she said that terminating sanctions should only be applied in extreme cases as their imposition undermines a party’s fundamental right to a trial and due process, and that they should generally not be imposed until less severe alternatives have been found to be unsuccessful.
Finding no such incremental process at play, Jackson wrote:
“Here, the trial court erred in imposing terminating sanctions as the first and only sanction for Ratliff’s failure to comply with the January 2020 order compelling discovery responses. It bears noting that the order at issue pertained to the first set of discovery requests propounded by Corodata, that discovery between the parties had just commenced, and that Ratliff had not failed to comply with any previous discovery orders.”
She continued:
“There is no indication the court attempted to impose any lesser sanction for Ratliff’s failure to comply with the January 2020 order before ordering the ultimate sanction of dismissal. Nor is there any evidence lesser sanctions would have been ineffective. On the contrary, the record indicates that when faced with the terminating sanctions motion, Ratliff remedied his failure to respond to the discovery requests by serving Corodata with the subject responses before the hearing.”
Other Justification Rejected
The jurist rejected Corodata’s contention that Ratcliff was estopped from arguing that the trial court had abused its discretion because he failed to provide a transcript reflecting why Hayashi found his excuse for failing to comply with the discovery order to be not credible. She said:
“[W]ith respect to the credibility determination the trial court made in its written order regarding Ratliff’s excuse for failing to comply with the January 2020 discovery order, it is not germane to the issue of whether the court abused its discretion in imposing terminating sanctions as the first and only sanction for Ratliff’s failure to comply with that order.”
She also rejected Corodata’s assertion that terminating sanctions were appropriate given the failures to appear at several case management conferences, failure to respond to the discovery requests in a timely manner and failure to timely oppose the motion for such sanctions.
Jackson acknowledged that courts are authorized to consider the “totality of circumstances” in considering the imposition of sanctions, but wrote:
“[T]he record indicates—and Corodata does not rebut—that by the time the trial court heard the terminating sanctions motion, Ratliff had responded to the discovery requests. Further, with respect to the prior failures to appear at case management conferences, it is important to note the trial court already imposed sanctions for those failures.”
Advice to Counsel
She added:
“Thus, while we are sympathetic to the trial court’s frustration with counsel for Ratliff’s dilatory and disorganized conduct, we cannot condone the immediate resort to a sanction of dismissal in response to the first discovery misuse in a matter…. Nothing we say, however, is intended to preclude the court from, upon properly noticed motion, imposing a graduated series of sanctions that may ultimately result in dismissal if Ratliff violates subsequent court orders. Moving forward, we also advise counsel for Ratliff to exercise much more diligence and care in his handling of this matter.”
The case is Ratcliff v. Corodata Corporation, A162964.
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