       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


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ERIKA HOWE, an individual,                            No. 68315-2-1
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                      Appellant,                      DIVISION ONE

                v.
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MCDONALD'S, INC., a foreign                           UNPUBLISHED                        co           ^A
                                                                                         en
corporation; M. DAVID SANTILLAS, JR.                                                     CP
and JANE DOE SANTILLAS, a marital                     FILED: September 23. 2013
community; MAG 20, LLC, a
Washington limited liability company; D.
LARK, a Washington corporation; and
MCDONALD'S RESTAURANTS OF
WASHINGTON, INC., a Washington
corporation,

                       Respondents.


       Cox, J. — When a trial court dismisses a lawsuit for violation of a

discovery order, it must explicitly consider on the record whether the violation

was willful, whether the opposing party was prejudiced by the conduct, and

whether a less severe sanction would suffice.1 Here, the trial court dismissed

Erika Howe's lawsuit without making any such findings. We reverse and remand.

          On April 15, 2011, Attorney David Smith commenced this personal injury

suit on behalf of Erika Howe against McDonald's Inc. and various other

defendants. The trial court set the discovery cutoff for August 13, 2012 and the




           Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036
(1997).
No. 68315-2-1/2



trial date for October 1, 2012. McDonald's Restaurants of Washington, Inc.

(hereinafter "McDonald's") filed an answer on August 4, 2011.

       On October 13, 2011, McDonald's moved to compel Howe to respond to

interrogatories, requests for production, and a request for a statement of

damages, all of which were due originally in September 2011. Counsel for

McDonald's acknowledged learning that Smith had been ill but reported that he

had heard nothing from or about Smith since August 2011. On October 27, 2011,

the trial court ordered Howe to provide full and complete answers to the

requested discovery within 40 days, that is, by December 5, 2011.

       McDonald's filed a "Motion to Show Cause and to Dismiss Case for Lack

of Prosecution" on December 13, 2011, noting the motion for hearing without oral

argument on December 21. Citing CR 37(b) and KCLR 4(g), McDonald's argued

that the trial court should dismiss the case because Howe's failure to comply with

the court's order "essentially paralyzes this litigation and [McDonald's] ability to

defend."

       On December 20, Smith sent an e-mail to the bailiff requesting an

emergency phone conference in order to seek an extension of time to provide the

discovery responses. On December 22, Smith sent an e-mail with completed

discovery responses to counsel for McDonald's.

       On December 23, 2011, the trial court granted "the Defendant's Motion to

Show Cause," and ordered that Howe's complaint be "dismissed with prejudice

within 5 days of this Order." The order lacks any findings regarding willfulness,
No. 68315-2-1/3


prejudice, lesser sanctions, or the discovery responses provided by Howe on

December 22.


       Attorney Kurt Bulmer appeared as co-counsel with Smith for Howe on

January 3, 2012. Bulmer also filed Howe's "reply" to, and motion to reconsider,

the order to show cause and dismiss. Bulmer and Smith provided supporting

declarations explaining that Smith had been seriously ill and received treatment

at the Mayo Clinic in the fall of 2011. Smith had been unable to work and made

arrangements for another attorney to take over Howe's case in August 2011.

When Smith returned in mid-October 2011, he was unable to locate Howe and

learned that his intended replacement had not appeared in the case. In

December, Smith was finally able to reach Howe and prepare discovery

responses for delivery on December 22.

       In her motion, Howe argued that dismissal was an unnecessarily harsh

remedy, that violation of the discovery order was not willful or deliberate, and that

McDonald's was not substantially prejudiced by the delay, given the fact that the

discovery was ultimately provided and crucial case schedule deadlines, including

the discovery cutoff, were still months away. With her motion for reconsideration,

Howe filed a proposed order granting reconsideration and vacating the order

dismissing the case based on the lack of evidence of willful misconduct,

substantial prejudice, or the need for such a harsh sanction in light of the fact that

discovery had been delivered. The trial court denied reconsideration by

modifying Howe's proposed order, striking out Howe's language regarding the
No. 68315-2-1/4



lack of evidence of willfulness, prejudice, and sufficiency of a lesser sanction and

writing in "DENIED."

       Howe appeals.

                                     SANCTIONS

       Howe argues the trial court erred by dismissing the case as a sanction for

violation of a discovery order without making explicit findings on the record

supporting its decision. We agree.

       Under CR 37(d), the trial court has broad discretion to impose sanctions

for a party's failure to participate in discovery, including dismissal of the action.2

Likewise, KCLR 4(g) provides that failure to comply with the case schedule may

be grounds for sanctions, including dismissal or terms.3 However, "[t]he sanction
of dismissal for failure to comply with discovery orders is the most severe

sanction which a court may apply, and its use must be tempered by the careful

exercise of judicial discretion to assure that its imposition is merited."4 Dismissal

is only justified where a party has acted in willful and deliberate disregard of court

orders and the efficient administration of justice, and the opponent's ability to

prepare for trial has been substantially prejudiced.5 Furthermore, a trial court
must consider on the record whether a lesser sanction would suffice and whether


willfulness and prejudice were present.6


       2See CR 37(b)(2)(C); Burnet. 131 Wn.2d at 494.
       3 KCLR 4(g)(1) ("Failure to comply with the Case Schedule may be
grounds for imposition of sanctions, including dismissal, or terms.").
       4Anderson v. Mohundro, 24 Wn. App. 569, 575, 604 P.2d 181 (1979).
       5ld
       6 Rivers v. Washington State Conference of Mason Contractors, 145
Wn.2d 674, 696, 41 P.3d 1175 (2002); Burnet. 131 Wn.2d at 494.
No. 68315-2-1/5


       We review a trial court's order dismissing an action for non-compliance

with discovery rules and orders for an abuse of discretion.7 Atrial court abuses
its discretion when it resorts to the harsh remedy of dismissal or default without

first making the explicit record that is required for appellate review.8 Nor can an
appellate court properly compensate for the lack of explicit trial court findings by

independently reviewing the record to determine whether the trial court's ruling

was reasonable in all the circumstances.9 Here, the trial court made no findings
whatsoever with respect to whether Howe's failure to comply with the order

compelling discovery responses was willful, whether McDonald's was

substantially prejudiced by the failure to comply, and whether any lesser sanction

than summarily dismissing Howe's complaint would suffice under the

circumstances of the case and in light of the purposes of the discovery order and

the length of time to trial. The trial court also made no findings regarding the

discovery responses Howe provided to McDonald's on December 22, the day

before its decision dismissing the case. Reversal is required.10
       McDonald's argues that the trial court's order denying reconsideration

demonstrates sufficient consideration of the necessary factors. McDonald's

contends that the trial court "explicitly rejected" Howe's factual claims and

arguments by striking out language in her proposed order. We disagree.

        The trial court abused its discretion here by dismissing the complaint

without first explicitly considering the necessary factors on the record. "Before


       7 Id, at 684-85.
       8]± at 696-98.
       9id, at 698-99.
       10 Id. at 700.
No. 68315-2-1/6


reaching" a conclusion that the harsh sanction of dismissal is the only

appropriate remedy, the trial court is required to consider willfulness, prejudice,

and lesser sanctions on the record.11 The December 23 order dismissing the
case does not refer to these factors and includes no findings. We do not view

the subsequent order denying reconsideration by striking out language on a

proposed order as adequate to demonstrate "careful exercise of judicial

discretion" or compliant with case law requiring explicit findings on the record

before imposition of "the most severe sanction which a court may apply."12
       We reverse and remand for further proceedings consistent with this

opinion.


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WE CONCUR:




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       11 Id, at 698-99 (emphasis added).
       12 Anderson, 24 Wn. App. at 575.
