The majority correctly frames the issue in this case as “whether the trial court abused its discretion in dismissing the action in light of the discovery statutes embodied in the Code of Civil Procedure and interpreted by case law.” (Maj. opn., ante, p. 491.) I respectfully disagree, however, with the majority’s conclusion that no abuse occurred.
It has long been accepted that discovery sanctions are not designed “ ‘to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.’ ” (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303 [10 Cal.Rptr 377], quoting Crummer v. Beeler (1960) 185 Cal.App.2d 851, 858 [8 Cal.Rptr. 698].) Furthermore, “the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 [149 Cal.Rptr. 499].) And it goes without saying that the ultimate sanction of dismissal is “ ‘a drastic measure which should be employed with caution.’ ” (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080 [256 Cal.Rptr. 522]; Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 793.)
When this case is viewed in light of these well-accepted principles and with a little common sense, it becomes clear that the sanction of dismissal was grossly out of proportion to the appellants’ conceded abuse of the discovery process. Appellants were served with interrogatories, requests for admission, and a request to produce documents on June 30. After a motion to compel the discovery and a stipulated court order to that effect, appellants *492produced their responses to the interrogatories on October 2, over three months later. While five of the questions were not answered as agreed, twenty-seven were answered. Respondents attempted to cooperate with appellants, but in the face of their recalcitrance were forced to notice another motion. At the hearing on January 5, appellants were not present. After learning the requested discovery had still not been produced, the court dismissed the entire action.
I sympathize with respondents’ frustration and applaud their counsel’s efforts to seek an out-of-court resolution of the problem. And I do not condone appellants’ flagrant disregard for the discovery statutes. But the dismissal of the entire action was clearly punitive and excessive when compared to the relatively limited value of the withheld information. The five unanswered questions related to breach of contract; appellants’ complaint, although predicated on a contract of insurance, sounded primarily in tort. The complaint clearly pleaded the existence of the contract (in fact, attached a copy) and its breach. The interrogatories (see maj. opn., ante, pp. 484-485) had only slight application to the case and the answers were obvious from a mere reading of the complaint. The documents requested consisted of all correspondence and reports pertaining to appellants’ loss and support for their claim of lost earnings. An adequate sanction would have been to preclude appellants from using any such documentation at trial.
In any event, the trial court should have attempted monetary sanctions before resorting to dismissal. While appellants’ conduct was clearly abusive, it had not reached the point where dismissal was warranted as a first sanction. The slight injury to respondent’s trial preparation by the failure to timely provide this relatively insignificant discovery should have resulted in a monetary sanction or, at most, an order precluding presentation of some portion of the claim for damages. The sledgehammer remedy of dismissal should not be used as the first punishment for discovery blunders.
I would reverse the judgment and order a new hearing to consider an appropriate first sanction for failing to make this discovery.
Appellants’ petition for review by the Supreme Court was denied September 18, 1991.