Theresa Brooke v. Sunstone Von Karman, LLC ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA BROOKE, a married woman No. 19-55699
dealing with her sole and separate claim,
D.C. No. 8:19-cv-00635-AG-ADS
Plaintiff-Appellant,
v. MEMORANDUM*
SUNSTONE VON KARMAN, LLC, DBA
Renaissance Newport Beach Hotel, a
Delaware limited liability company,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Theresa Brooke appeals from the district court’s order dismissing her action
alleging violations of the Americans with Disabilities Act and California’s Unruh
Civil Rights Act. We have jurisdiction under 28 U.S.C. § 1291. We review for an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
abuse of discretion. Nascimento v. Dummer, 508 F.3d 905, 909 (9th Cir. 2007)
(dismissal for failure to appear at a pretrial conference); Pagtalunan v. Galaza, 291
F.3d 639, 640 (9th Cir. 2002) (dismissal for failure to comply with a court order).
We vacate and remand.
The district court dismissed Brooke’s action following a hearing on an order
to show cause issued after Brooke failed to appear at a scheduling conference. The
district court, however, failed to explain why less drastic sanctions were
inadequate. See Malone v. United States Postal Serv., 833 F.2d 128, 131-32 (9th
Cir. 1987) (“The district court abuses its discretion if it imposes a sanction of
dismissal without first considering the impact of the sanction and the adequacy of
less drastic sanctions.” (citation and internal quotation marks omitted)); see also
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“[D]ismissal is a harsh
penalty and, therefore, it should only be imposed in extreme circumstances.”).
Accordingly, we vacate and remand for further proceedings.
VACATED and REMANDED.
2 19-55699