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. 

The facts of the case are very straightforward.  Defendant Pricewaterhousecoopers LLC (PWC ) filed a motion for sanctions under Code of Civil Procedure sections 2023.010 and 2023.030 of the Civil Discovery Act nine months after the case was dismissed with prejudice, seeking monetary sanctions for egregious misuse of the discovery process while the litigation was pending.  

The motion was based on the City of LA’s (City) conduct that throughout the litigation which PWC argued was a misuse of the discovery process under section 2023.010.  The alleged abuses were:  

(1) asserting attorney-client and attorney work product privileges in bad faith to prevent discovery of the [draft of the putative class action complaint against PWC regarding the same facts] and remediation documents that were not privileged (§ 2023.010, subd. (e)); 

(2) misrepresenting and concealing facts at the December 4, 2017 hearing to avoid production of the draft complaint (§ 2023.010, subds. (e), (f), (h));

(3) refusing to comply with the January 11, 2018 order directing production of a PMQ witness about the preparation of the draft complaint and filing a motion to quash the PMQ deposition notice (§ 2023.010, subds. (d), (e), (g), (h)); 

(4)   giving false responses and failing to produce responsive, non-privileged documents in response to PWC’s May 2, 2017 requests for documents transmitted between LADWP and Jones’s counsel before August 7, 2015 (§ 2023.010, subds. (d)–(f));

(5) failing to produce responsive, non-privileged documents requested in the April 13, 2018 deposition notice for the PMQ (§ 2023.010, subds. (d), (g)); 

(6) providing false testimony and leaving the September 13, 2018 PMQ deposition without substantial justification (§ 2023.030 subds. (d)–(g)); 

(7) bringing an unsuccessful motion for a protective order without substantial justification to prevent further PMQ testimony and without trying to resolve the dispute informally (§ 2023.010, subds. (e), (h), (i)); 

(8) asserting a right to withhold the draft complaint under a “common interest privilege” (§ 2023.010, subds. (e), (f), (h)); 

(9) failing to produce relevant documents [Assistant City Attorney’s] computer hard drive (§ 2023.010, subds. (d), (g)); 

(10)  spoliating evidence through [Assistant City Attorney’s] destruction of handwritten notes of interviews he conducted to prepare for his PMQ deposition (§ 2023.010, subds. (d), (g)); and 

(11) testifying evasively or falsely about the City’s knowledge of the collusive nature of the class action (§ 2023.010, subd. (f)).

After a hearing, the trial court granted PWC’s motion for sanctions. The court concluded that 

“Code of Civil Procedure section 2023.030 authorizes a trial court to direct any party or attorney who has engaged in the misuse of the discovery process to pay the reasonable expenses, including attorneys’ fees incurred, as a result of that conduct.” “Misuses of the discovery process include, among other things, failing to respond or to submit to an authorized method of discovery, making without substantial justification an unmeritorious objection to discovery, making an evasive response to discovery, disobeying a court order to provide discovery, and making or opposing unsuccessfully and without substantial justification a motion to compel to limit discovery. Code Civ. Proc., section 2023.010.” 

The trial court also concluded that sanctions could be imposed under its “inherent power to deal with litigation abuse.” Finding a “serious abuse of discovery by the City and its counsel,” the court awarded PwC $2.5 million in sanctions against the City.

The Court of Appeal reversed the trial court, stating:

“Section 2023.010 describes general categories of discovery misconduct but does not contain any language that authorizes the court to impose the conduct listed… Instead, each of the categories of misconduct listed in section 2023.010 are managed through the procedures set forth in the chapters governing the discovery methods, as well as the other provisions of the Discovery Act that regulate and sanction misconduct…Section 2023.030 describes the types of sanctions available under the Discovery Act when another provision authorizes a particular sanction. Section 2023.030 does not independently authorize the court to impose sanctions for discovery misconduct.”  [501-503] See Blog “Where’s the authority to Impose Sanctions?”   

The Supreme Court reversed the Court of Appeal and reinstated the trial court’s $2.5 million award of sanctions against the City. In addressing City’s argument that CCP 2023.010 and 2023.030 doesn’t give the court inherent authority to impose sanctions absent the authority in the specific discovery device statue, the court stated:

“One of the principal purposes of the [1957] Act,” which the 1986 Act built upon, was “to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits.” (Caryl Richards, Inc. v. Superior Court, supra, 188 Cal.App.2d at p. 303.) The  Legislature that enacted the 1986 Act was aware of gaps in the preexisting scheme of statutory sanctions, and it was also aware that some courts had invoked their inherent authority to fill those gaps. (1 Hogan & Weber, supra, § 1.3, pp. 1-5 to 1-6; see, e.g., Fairfield, supra, 246 Cal.App.2d 113.) One of the central purposes of the 1986 Act, then, was to give courts the tools necessary to respond to those abuses to ensure that civil discovery can serve its central truth-seeking function. (See 2 Hogan & Weber, supra, § 15.1, p. 15-1 [“The wholesale revision of civil discovery law through the Discovery Act of 1986 was due in good part to the Legislature’s concern about discovery misuses that had developed during the three decades that the original [1957] Act was in operation.”].)  at pages 73-74.

The case is significant as it reaffirms the trial court’s inherent power to address discovery abuses and that a party can bring this motion after the matter has been dismissed with prejudice.  

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.  

Below is Justice Lambden’s protocol.  I recommend that you implement the protocol for Zoom depositions even if you don’t have a Discovery Referee and attach it as an exhibit to the 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.

Reason #1: Plaintiff failed to meet her obligations under C.C.P. §2030.220 in responding to Defendants’ Supplemental Interrogatories.  The code requires that a party must make a reasonable and good faith effort to obtain the information in responding to interrogatories.  C.C.P. §2030.220; Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th 1496. “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA3d 771, 779. This includes a party’s lawyer (Smith v. Superior Court (1961) 189 CA2d 6, 12); agents or employees (Gordon v. Sup. Ct. (1984) 161 CA 3d 151, 167-168); family members (Jones v. Superior Court (1981) 119 CA 3d 534, 552); and experts who have been retained by a party. Sigerseth v. Superior Court (1972) 23 CA 3d 427, 433. Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) ¶ 8:1051-1060. This means that an attorney can’t just attach 290 documents with no descriptions.  Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390. The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information to enable them to fully respond to the interrogatories.  

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.     

Scenario:  A party makes outrageous claims against your client that is not supported by the facts.  Their lawyer repeats these claims in hearings before the court, placing you in a position of trying to argue against the falsity, and making sure that false allegations being made doesn’t prejudice the court against you and your client prior to the trial. 

The discovery plans in these cases are different than the other litigated cases.  Your goal is to discredit the false allegations either by  affirmatively proving that the allegation is false or showing that there is no evidence to support the false allegations in order to bring a motion for summary judgment/summary adjudication and motions in limine. In order to accomplish these goals your discovery plan will need to be strategic as well as a being thoroughly planned out as to what discovery devices will be the most effective.

Continue Reading Proving That the Opposing Party’s Accusations are False–Like Peeling an Onion

In my Discovery Referee cases, I am seeing more motions going to the brink with one party bringing a motion for issue, evidence and/or terminating sanctions.  Many of the motions are denied without prejudice due to the papers being deficient in showing a history of abuse and prejudice to the propounding party that warrant the granting of the motion.  This blog discusses the law regarding the court’s ability to award issue, evidence and terminating sanctions and what you need in your motion to be successful.   

Continue Reading When Money is Not Enough–The Request for “Drastic Sanctions”

The Onglyza Product Cases, A165387 decided on April 19, 2023 by the First District Court of Appeal is a case to be aware of.  

The case involved 13 California state cases coordinated under a Judicial Council Coordination proceeding (JCCP) regarding the drug of Onglyza and Kombiglyze which contained the active ingredient saxagliptin, a medicine for type 2 diabetes. Plaintiffs alleged that they were injured as the active ingredient can cause heart failure.  The trial court ordered the parties to conduct discovery in phases.  The first phase covered percipient and expert discovery on the issue of general causation, noting that the litigation would then proceed as to other issues only if plaintiffs were able to show that the defendant’s drugs caused the injuries alleged.  Following expert discovery, the defendants moved to exclude Plaintiffs’ causation expert, a Dr. Goyal.  Defendants’ claimed in a Daubert/Sargon hearing that Dr. Goyal was either unqualified to offer his proposed opinions, or that the basis of the opinions were incomplete and didn’t support causation.  

Continue Reading Beware if Your Expert is Disqualified!!

After reviewing the 2023 discovery statutes, there have been changes to the following statutes:

The most significant change in the 2023 discovery statutes is the repealing of C.C.P. 2016.080 Informal Discovery Conference. See discovery blog titled “If Meet and Confer fails, Ask for Help.”  Also, make sure to check your local rules and determine if your court will still use informal discovery conferences.

C.C.P. §2025.310        Deposition via remote means; Who must appear in person; Procedure

Added the second sentence to paragraph (b) which states: 

If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply with local health and safety ordinances, rules, and orders.

Continue Reading It’s a New Year and there are New Discovery Laws