Over the years, I have heard numerous motions for issue, evidence and  terminating sanctions. I found that it is difficult to rule on motions for issue and evidence sanctions if the Separate Statement is not complete. If the Separate Statement does not fully explain what you are asking for and specifically describe the numerous discovery requests and the deficiencies in the responses you received regarding the specific issue or evidence your requesting an order on, the record will not allow me to recommend sanctions beyond monetary sanctions. 

I have found that the following format for the Separate Statement that was the most useful for me to rule on these motions should be as follows:

         *       ISSUE or EVIDENCE SANCTION TO BE DETERMINED.

State exactly what issue or evidence sanction you want the court to grant with specificity. Be sure that the issue or evidence sanction exactly tracks the discovery sought and does not ask for something more than a proper answer to the discovery requested would have provided.

         *       List each written discovery request sent to and deposition question asked of responding party that supports your request for the issue or evidence sanction.

         *       Following each request, state the response that was not fully responsive that supports your request for the sanction.

         *      WHY THE ISSUE or EVIDENCE SANCTION SHOULD BE GRANTED.  

Don’t do this for each individual written discovery request and deposition question like you would do for a regular motion to compel further responses. Your goal is to show the cumulative effect of the opposing failure to provide proper discovery responses to support your argument for the issue or evidence sanction.

For the opposition to a issue or evidence sanction motion, the opposing party should add to the Separate Statement stating: 

         *       WHY THE ISSUE or EVIDENCE SANCTION SHOULD NOT BE GRANTED 

The opposing party should list every discovery response either it be an interrogatory answer, document production, request for admission or a deposition answer that shows the information was provided in discovery.  Even if there wasn’t a response or the response wasn’t complete to the specific discovery device in the Separate Statement, the information may have been provided in response to another discovery device thus defeating the motion. If the information has not previously been provided in discovery, then serve updated verified discovery responses with your opposition. The further discovery response could defeat the motion for issue or evidence sanction.

Having reviewed thousands of Motions to Compel Further Responses over the years, I rely heavily on the separate statement filed with these motions.  Unfortunately, I find that many of the separate statements are deficient and not in compliance with Rule 3.1345 of the California Rules of Court.  This inevitably hurts the moving party as I search for the information that should have been in the Separate Statement. However, beware, Courts routinely deny these motions when the separate statement fails to be in compliance with CRC, Rule 3.1345.

According to California Rules of Court, Rule 3.1345(a) any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

  • To compel further responses to requests for admission;
  • To compel further responses to interrogatories; 
  • To compel further responses to a demand for inspection of documents or tangible things; 
  • To compel answers at a deposition; 
  • To compel or to quash the production of documents or tangible things at a deposition;
  •  For medical examination over objection; and 
  • F or issue or evidentiary sanctions.  (Note: not required for terminating sanctions, but is helpful.)

Below is Paragraph (c) of Rule 3.1345(c) with emphasis which makes it clear what information needs to be in your separate statement: 

  • The separate statement provides all the information necessary to understand each discovery request and all the responses to it that are at issue.
  • The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.
  • Material must not be incorporated into the separate statement by reference.
  • The text of the request, interrogatory, question, or inspection demand must be included.
  • The text of each response, answer, or objection, and any further responses or answers must be included.
  • A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute must be included
  • The statement must include text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it.
  • If the response to a particular discovery request is dependent on the response given to another discovery request, then the other request and the response to it must be included
  • If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

So, after reviewing the onerous requirements of Rule 3.1345(c) this is an example of what your separate statement should look like for Form Interrogatory #17.1.

MOTION TO COMPEL FURTHER RESPONSE TO FORM INTERROGATORIES

INTERROGATORY 17.1

17.1  Is your response to each request for admission served with these interrogatories an unqualified admission?  If not, for each response that is not an unqualified admission:

(a)     state the number of the request;

(b)    state all facts upon which you base your response. 

(c)     state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d)    identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

  • DEFINITIONS:

         YOU OR ANYONE ACTING ON YOUR BEHALF includes you, your agents, your employees, your insurance companies, their agents, their employees, your attorneys, your accountants, your investigators, your experts, your consultants, and anyone else acting on your behalf.

         ADDRESS means the street address, including the city, state, and zip code.

         PERSON includes a natural person, firm, association, organization, partnership, business, trust, limited liability company, corporation, or public entity.

         DOCUMENT means a writing, as defined in Evidence Code section 250, and includes the original or a copy of handwriting, typewriting, printing, Photostats, photographs, electronically stored information, and every other means of recording upon any tangible thing and form of communicating or representation, including letters, words, pictures, sounds, or symbols, or combinations of them.

  • SUMMARIZATION OF OTHER RELEVANT DOCUMENTS

         Summarize all other documents which the particular discovery request is dependent on (i.e., applicable paragraph of the complaint).

     and the response verbatim and include all applicable  definitions

RESPONSE

         State the response verbatim.

WHY A FURTHER RESPONSE SHOULD BE COMPELLED

         Do your real argument here.  Be detailed in the law as to why the objections are garbage.  Apply the facts of your case to show why the information you are seeking is discoverable. Be sure to insert your arguments from the points and authorities

REMEMBER: A Separate statement, when done right, can be a party’s greatest advantage in winning a motion to compel further responses.

Production of documents request

Most discovery disputes involve requests for production of documents.  This is because there are specific requirements for a party to properly respond to the request which has been the subject of many of my blogs, including a responding party’s obligation to state whether the documents you are seeking ever existed and where they are now as well as which request the documents being produced are responsive. However, there is nothing more combative in discovery than parties arguing over objections to a document request and the adequacy of the privilege log–assuming one was even provided. 

Continue Reading Ask The Court to Perform an In-Camera Review of the Documents Being Withheld On the Claim of Privilege

California law expressly provides for discovery of information about the evidence and contents of any insurance agreement under which a carrier may be liable to satisfy all or part of a potential judgement or to indemnify or reimburse payments made to satisfy the judgment.  C.C.P. §2017.210.  The statute also provides for discovery of whether coverage of the claim involved in the action is disputed, “but not as to the nature and substance of that dispute.”  C.C.P. §2017.210.

Continue Reading Is Insurance Information Discoverable?

In the case of City of L.A. v. PricewaterhouseCoopers, LLC (2024) 17 C5th 46 the California Supreme Court unanimously held that the Discovery Act gives courts independent authority to impose sanctions for discovery abuses and patterns of discovery abuse provisions. This was a complete reversal of the Court of Appeal’s decision which had limited the ability to obtain sanctions to the specific discovery device decision. In their decision, the Supreme Court stated that

“Under the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court had the authority to impose monetary sanctions for the City’s pattern of discovery abuse. The court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery.” at pages 50-51. 

Continue Reading The Court has Inherent Power to Impose Discovery Sanctions

We all have been doing Zoom depositions for the last four years.  As we have limped along, we have developed implied rules and protocols for having these depositions, but there are no written rules or guidance on how these depositions should be conducted.   

Justice James Lambden (Ret.) who often is appointed as a Discovery Referee, has the answer.  When he is the Discovery Referee, he serves on all parties his “REMOTE (HYBRID) DEPOSITION PROTOCOL” prior to depositions being conducted.  When Justice Lambden attends the deposition, he confirms on the record that all parties have read and understands the protocol.  He has found that his protocol aids him and the parties in conducting a clean Zoom deposition.  

Continue Reading ZOOM DEPOSITIONS—What is the Protocol

I recently received an inquiry regarding Code of Civil Procedure section 2023.050, which now states that the court SHALL impose sanctions of $1000 payable to the requesting party regarding requests for production of documents in deposition notices or document demands.  These were the facts:   

Plaintiff brought a Motion to Compel Further Responses to Requests for Production of Documents.  Defendant opposed the motion and won.  The Judge then sanctioned the Defendant $1000.00 stating that he had no choice but to sanction the defendant pursuant to CCP 2023.050 as Plaintiff asked for sanctions and Defendant didn’t.  The Judge also told defense counsel that if Defendant had asked for sanctions, he would have awarded Defendant the $1000.00.  Defense counsel was bewildered with the imposition of sanctions and asked me if the Judge was correct. 

No, the Judge was not correct.  Code of Civil Procedure §2023.050 states:

Continue Reading Should I have been Sanctioned?

Consider the following question I received from a defense attorney.

“Plaintiff timely served updated verified responses to Form Interrogatories, Set #1, #6.4, 8.4, 8.6, 16.1- 16.8 and 17.1 (RFA #5) pursuant to a Supplemental Interrogatory request.  Instead of providing the information requested in the interrogatories, Plaintiff responded to each of the interrogatories with the following response: 

Pursuant to CCP §2030.230, Plaintiff identifies the documents Bates Stamped 00001 – 00290 she produced on March 1, 2024

The email went on to ask if Plaintiff’s response was proper. The answer is no.

Continue Reading Can I Reference Documents When Answering Interrogatories?

There are two significant changes to the Discovery Act this year: C.C.P. §2016.090 and C.C.P. §2023.050.  My California Civil Discovery: Chart for the Everyday Litigator has been updated to reflect these changes. 

Continue Reading Changes in Attitude—Nothing Remains Quite the Same 

According to the Second District Court of Appeal in the family law case of In re Marriage of Rangell decided on September 28, 2023 the answer is YES!  The Court of Appeal found that the husband had violated numerous family court orders for over two years and that the court’s imposition of sanctions pursuant to Family Code Family Code §271 was not abusive. In upholding the trial court’s imposition of $1000 a day sanction until the husband had complied with the court’s orders, the Court of Appeal stated: 

The lesson here to [husband] is plain: he cannot repeatedly flout the court’s orders for years and expect to get away with it, when his conduct delayed [wife’s] enjoyment of her share of community property and caused her to incur additional attorney fees and costs in enforcing the court’s orders. “‘Somewhere along the line, litigation must cease.’ [Citation.] [Husband] has yet to absorb this message,” warranting sanctions. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1317–1318, 1320 [116 Cal. Rptr. 3d 375] [“When making the award, the family court shall consider [Husband’s] dilatory tactics … and the policy of imposing sanctions in an amount sufficient to deter future similar conduct.”].)

This is another recent case where the Court of Appeal has come down hard on parties who have repeatedly violated court orders. Though the case was decided under Family Code §271, the rationale is applicable to other civil cases.