Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC050708, Deanne Smith Myers, Judge.
Law Offices of Joseph R. Zamora and Joseph R. Zamora for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Sek-Kam Suen appeals from the default judgment entered against her following the court’s imposition of terminating sanctions after the court found she would not comply with the court’s order to provide discovery. We reverse.
FACTS AND PROCEEDINGS
Appellant Sek-Kam Suen signed in 2000 a lease for a flower shop with the predecessor of respondent landlord, LB South & Downey, LLC. The lease was set to end in 2009. In a complaint filed in 2008, the landlord alleged appellant stopped paying rent in breach of the lease. The landlord further alleged it had regained possession of the property through an unlawful detainer proceeding, and through its complaint sought to recover the unpaid rent.
Appellant answered the landlord’s complaint. She denied she owed rent because she had sold her flower shop in 2006 and had assigned the lease to the shop’s new owner. She further claimed she notified the landlord by certified mail of the sale and reassignment.
The landlord served on appellant a request for production of documents which supported her defense that she had sold the shop and notified the landlord. Appellant did not comply with the request for production. On June 6, 2008, the landlord served a motion to compel production with a hearing set for July 15. In a handwritten letter dated June 12, 2008, and received by the court and landlord around June 16, appellant wrote she was unavailable to attend the hearing because she was going to be in China from the end of June until August. The hearing proceeded as scheduled, and the court, in appellant’s absence, granted the motion to compel and ordered appellant to produce her documents within 20 days.
Appellant did not comply with the court’s order. As a sanction for appellant’s noncompliance, the landlord moved to strike appellant’s answer. Appellant appeared in pro per at the hearing on the landlord’s motion. As the hearing began, the court stated it would give appellant more time to comply with the court’s discovery order if appellant would agree to produce the demanded documents. Several times appellant answered she would comply, but immediately followed each of her affirmative responses with an attempted explanation of herself and her case, saying something like “yeah [I will comply], but the thing is” before the court would cut her off. Demanding a succinct response, the court seemingly tried to direct appellant toward a one word “yes” or “no.” At one point the court demanded appellant, “Stop telling me all of this ‘but this’ ‘but that.’ You’re going to comply with the orders of the court and the rules and regulations and all of the ‘but this’ and ‘but that’ has no bearing on the case. [¶] Do you understand?” After several go-rounds, the court changed course. Reversing itself, the court granted the landlord’s motion for discovery sanctions. The court stated:
“It appearing to the court in this matter that the defendant is refusing to comply with the previous orders in this matter. And the court is not inclined to indulge her further in this case. [¶] The court will grant terminating sanctions in this matter. The defendant’s answer is stricken.”
Following the striking of appellant’s answer, the court entered appellant’s default. At a later prove up hearing on the landlord’s damages, the court entered judgment for the landlord in the amount of almost $41,000 in rent, prejudgment interest, costs, and attorneys fees. This appeal followed.
DISCUSSION
Appellant contends the court abused its discretion by striking her answer. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217 [discovery sanctions reviewed for abuse of discretion].) We agree.
The Code of Civil Procedure permits a trial court to impose sanctions on a party that disobeys a court’s discovery order. (Code Civ. Proc., § 2023.010, subd. (g).) A range of sanctions exists, beginning with monetary sanctions and moving on to issue and evidentiary sanctions. (§ 2023.030, subds. (a)-(c).) The ultimate sanction is terminating sanctions, which is tantamount to a death sentence in a civil case. (§ 2023.030, subd. (d); Morgan v. Southern Cal. Rapid Transit Dist. (1987) 192 Cal.App.3d 976, 981 disapproved on another point in Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 434.)
All further undesignated section references are to the Code of Civil Procedure.
A court’s imposition of discovery sanctions must aim to remedy a recalcitrant party’s abuse of discovery; their purpose is not to punish the party. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Thus, a court’s sanction order may go no further than what is needed to accomplish the purpose of discovery. (Id. at p. 613.) Accordingly, terminating sanctions are rarely appropriate, almost always only after a party repeatedly demonstrates its willful failure to comply with the court’s discovery orders. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) “We recognize that terminating 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 [terminating sanctions proper after repeated violations of stipulations and court orders, forgery of documents, and deliberate destruction of evidence].)
Here, the trial court’s striking of appellant’s answer was an abuse of discretion. Appellant had not committed repeated discovery violations. The court had issued one order to compel. Substantial evidence of appellant’s willful refusal to comply with the order did not exist. Indeed, the court had begun the discovery sanction hearing intending to allow appellant additional time to comply. Nothing appellant said during the hearing supported a finding that she would disobey the order. Her efforts to explain herself and her case may have exasperated the trial court, but they were not substantial evidence that she would ignore the court’s order. Accordingly, the court abused its discretion by imposing terminating sanctions. At most, the court may perhaps have been justified in imposing some lesser sanction (see e.g. § 2023.030, subd. (a) monetary sanction) to impress upon appellant her obligation to provide the requested documents. But the court leapt beyond what was needed to accomplish the purpose of discovery when it struck appellant’s answer and entered her default. (Newland v. Superior Court, supra, 40 Cal.App.4th at p. 613 [court must tailor sanction toward compliance, not punishment].)
DISPOSITION
The judgment is reversed. The court is directed to enter a new order reinstating appellant’s answer and denying respondent’s motion for terminating sanctions. The reinstatement of appellant’s answer is without prejudice to the court’s exercise of its discretion to impose sanctions needed to ensure appellant complies with the court’s order to provide discovery.
WE CONCUR: BIGELOW, J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.