I have always been a strong advocate that you should be awarded sanctions if you had to bring a motion to get the relief you were entitled to even if the other side complied prior to the hearing on the motion. However in the case of Evilsizor v. Sweeney (2014) 230 CA4th 1304, the First District Court of Appeal had an interesting take on the issue.
Continue Reading Should you withdraw your motion if the other side has complied?
ANSWER: A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.
In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51
Continue Reading What is a General Objection?
Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)?
Does it mean the conduct that led the moving party to make the motion has to be substantially justified? Or does it mean the decision to make or oppose the motion to compel has to be substantially justified?
Continue Reading Acted with Substantial Justification
DILEMMA: It is 30 days before trial and you get the final responses to your propounded discovery. In reviewing responding party’s answers to supplemental interrogatories the verified response says “Responding party states that all answers to Interrogatories, Set No. One, that were previously served in this action remain the same.” Yet years have passed, records have been obtained, experts have been deposed and you know they’re lying. What do you do?
Continue Reading All Answers Remain the Same
As every lawyer is aware, a party may propound more than 35 specially prepared interrogatories or requests for admissions simply by attaching a Declaration of Necessity pursuant to C.C.P. §2030.040 and C.C.P. §2033.040 stating the reasons why they need more. See C.C.P. §2030.050 and C.C.P. §2033.050. However, when you receive more than 35 specially prepared interrogatories or requests for admissions, you should ask yourself the question “IS IT REALLY NECESSARY?”
Continue Reading “I DECLARE, IT IS NECESSARY”
Cost of proof sanctions are designed to compensate for unnecessary expenses resulting from proving matters unreasonably denied. You don’t have to win the lawsuit to be awarded these sanctions. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1405 citing Smith v. Circle P Ranch Co., Inc. (1978) 87 CA3d, 267, 276. They way to win this motion is to set it up from the beginning.
Continue Reading GET YOUR COST OF PROOF SANCTIONS HERE!
After a long stretch of depositions, coupled with intense mediation sessions you finally have a day in the office to clean off your desk and catch up on your other cases Going through the stacks of mail, you find the motion with teeth -the Motion to Have Admissions be Deemed Admitted. Panic sets in. Now what do you do? The first thing you do is pick up the phone and call opposing counsel and beg for relief.
Continue Reading The Discovery Motion with Teeth
There are three motions that you can bring–(1) Motion to Compel, (2) Motion to Compel Further Responses, and (3) Motion to have matters Deemed Admitted. All of them have their place in your discovery plan but two of them –Motion to Compel Further Responses and Motions to Have Matters Deemed Admitted must be in your arsenal. Though they appear to be the same motions you would use for interrogatories, inspection demands, and depositions there are a few noteworthy twists and turns.
Continue Reading Request for Admissions-THE MOTIONS
Answering Requests for Admissions is very similar to answering interrogatories-you have an obligation to respond in good faith and you have to be careful about your garbage objections. However, the code makes it clear that the requirements in responding to Requests for Admissions are higher. The Discovery Act does not have such strident language for responding to interrogatories or an inspection demand. This is because Requests for Admissions are not designed to uncover factual information. Rather, their main purpose is to set issues at rest by compelling admission of things that cannot reasonably be controverted. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1256 citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256,261.
Continue Reading Answering Requests for Admissions-Beware of the Traps
Requests for admissions may be used to (1) establish the truth of specified facts, (2) admit a legal conclusion, (3) determine a party’s opinion relating to a fact, (4) settle a matter in controversy, and (5) admit the genuineness of documents. See C.C.P. §2033.010; Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶ 8:1288 – 8:1301.2; CEB California Civil Discovery Practice 4th Edition §§ 9:17 – 9:20. However that is all good and dandy, but how to write a Request for Admission in order to be effective evidence in a motion for summary judgment or at trial is difficult.
Continue Reading How to Write Requests for Admissions