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.   

As mentioned in previous blogs, each discovery method authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against a party engaging in conduct amounting to a misuse of the discovery process. City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 CA5th 466.  Code of Civil Procedure §2023.010 states that the misuses of the discovery process include, but are not limited to, the following: 

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

Besides monetary sanctions pursuant to C.C.P. §2023.030(a), the court has the power to impose four “drastic sanctions” pursuant CCP §§2023.030(b), (c), (d), and (e):

  • The least severe of these sanctions is the “evidence” sanction.  This order precludes a recalcitrant party from using certain evidence that might otherwise be admissible at trial.  
  • More severe is the “issue” sanction where the court will treat certain disputed facts for purposes of the trial as established in favor of the party who was seeking the discovery.
  • Another drastic sanction is a “contempt” sanction which is limited to disobedience of a court order to answer a question or produce documents during a deposition.  See C.C.P. §2025.480.

Sanctions are generally imposed in an incremental approach with terminating sanctions being the last resort. Department of Forestry & Fire Protection v. Howell (2017) 18 CA5th 154, 191-92. See California Practice Guide: Civil Procedure Before Trial (TRG 2023) ¶ 8:1215 et seq.  It is important that you establish that you are entitled to monetary sanctions when you bring each of your discovery motions.  In New Albertsons, Inc. v. Sup. Ct. (2008) 168 CA4th 1403, 1427 the Court of Appeal held that only monetary sanctions are authorized for the initial failure to respond to discovery or for insufficient responses to discovery. However, this is not a hard and fast policy.  There are several that have held that it is not an abuse of discretion to dismiss for continuing willful discovery violations if no monetary or other sanctions were first imposed.  See California Practice Guide: Civil Procedure Before Trial (TRG 2023) ¶8:2236 citing Laguna Auto Body v. Farms. Ins. Exchange (1991) 231 CA3d 481, Garcia v. McCutchen (1997) 16 C4th 469, and R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 CA4th 486.

Also, the “lesser sanctions first” policy may not apply where it would permit a party to benefit from its own stalling tactics.  See Do it Ur Self Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 CA4th 27.

When reviewing a motion for issue, evidence and/or terminating sanctions, the court must examine the entire record in determining whether the drastic sanction should be imposed. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796 In exercising the Court’s discretion, a variety of factors may be relevant, including:

  • the time which has elapsed since the discovery was served; 
  • whether the party received extensions of time to answer or respond; 
  • the number of discovery requests and the burden of replying;
  • the importance of the information sought; 
  • whether the answering party acted in good faith and with reasonable diligence—i.e., whether the answering party was aware of the duty to furnish the requested information and had the ability to do so;
  • whether the answers supplied were evasive and incomplete;
  • the number of questions which remained unanswered; 
  • whether the unanswered questions sought information that was difficult to obtain;
  • whether the party was unable to comply with the previous order of the court;
  • whether an order allowing more time to answer would enable the answering party to supply the necessary information; and, 
  • whether a sanction short of dismissal or default would be appropriate to the dereliction.  

See Cal. Prac. Guide: Civ. Pro. Before Trial (TRG 2023) ¶8:2205 citing Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 796–97.

In addition, the court is entitled to consider the party’s prior conduct with respect to the discovery to decide if sanctions are justified.  Manzetti v. Sup. Ct. (1993) 21 Cal.App.4th 373, 379.  

Past experience is often a “prime indicator” in assessing an attorney’s or party’s credibility and motivation. “An abuse of discovery procedures in one instance can imply a continuing intent to abuse in other instances.”  Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 430-431

Where prior conduct has not been punished, it still can contribute to a later award of sanctions based upon a more extensive course of conduct. Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1043Liberty Mut. Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106 . Sanctioned party’s history as repeat offender “is not only relevant, but also significant, in deciding whether to impose terminating sanctions”.  On the other hand, past conduct that has already been considered by the court in a sanctions context cannot be the basis for additional sanctions.  See Andrus at 1043;

The court must tailor the sanction to the dereliction.  “The court may make such orders in regard to the refusal as are just.” Caryl Richards, Inc. v. Superior Court (1961) 188 CA2d 300, 304. However, the court abuses its discretion when it imposes a sanction order that goes beyond the evidence or issue which the discovery was seeking.  See Caryl Richards, Inc. at 304, Van Sickle v. Gilbert (2011) 196 CA4th 1495 and Karlsson v. Ford Motor Co. (2006) 140 CA 4th 1202.

There are “only two facts are absolutely prerequisite to the imposition of sanctions: (1) there must be failure to comply . . . and (2) the failure must be willful.”  See Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904, R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496 and Deyo v. Kilbourne (1978), 84 Cal.App.3d 771, 787.  Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply. Deyo v. Superior Court, supra, 84 Cal.App.3d 771, 787.  

“A willful failure does not necessarily include a wrongful intention to disobey discovery rules.  A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.”  Deyo at 787-788.

Even if the client is not responsible, the “sins of the attorney” is chargeable to the client.  The client’s remedy is against the attorney for malpractice.  Cal. Prac. Guide: Civ. Pro. Before Trial (TRG 2023) ¶8:2247 citing Bernstein v. Allstate Ins. Co. (1981) 119 CA3d 449, 451 and Carroll v. Abbott Laboratories, Inc. (1982) 32 C3d 892, 899.

A motion for issue, evidence and/or terminating sanctions is fact driven and is supported by all of the evidence. Do not be afraid to be inclusive. The last motion for terminating sanctions that I recommended to the court to be granted was close to 3000 pages. In brining your motion you should provide the following information:

1.         Facts of the Case. Give a good explanation of the facts of the case for the court to gauge the gravity of the discovery abuse against the size of the case, the value of the case and the discovery that had been requested in context of the case as a whole. 

2.        Timeline. Provide a procedural timeline and include:

  • Date complaint was filed and when the answer was filed.
  • All dates discovery propounded by you and the dates you received responses.
  • All meet and confer efforts. 
  • All informal discovery conferences with the court. 
  • Dates of filings for all your discovery motions (not just the ones that are currently in issue, as well as the opposition papers and reply papers.
  • Hearing dates and court rulings.
  • Mediation and settlement conference dates (if applicable).
  • Motion for Summary Judgement/Summary Adjudication deadline (if applicable).
  • Trial Date (if applicable).

3.         Argument. In your argument section state why you were entitled to your discovery. Detail how the opposing party not only didn’t respond but engaged in a strategy of repeated dilatory conduct and failed to comply with their obligations under the Discovery Act. Make sure have separate descriptive paragraphs for: 

  • All your meet and confer efforts and opposing party’s response to those efforts. Quote the correspondence and attach the correspondence to declarations.
  • All Informal Discovery Conferences with the court, the court facilitator and/or the Discovery Referee.
  • Every discovery ruling the court has made. Quote from the ruling and attach the orders to your declaration.
  • How the opposing party’s failure to provide code compliant responses, provide documents requested and/or t to answer deposition questions has blocked your ability to conduct discovery on opposing party’s allegations/defenses and interfered with your ability to prepare for trial.  Give specific examples of what discovery you were unable to recover. (i.e., the documents that the opposing party is relying on which supports a specific cause of action or defense).  

4. Separate Statement. Provide a Separate Statement of Items in Dispute showing all the different responses you had received. Do your real argument here. Be detailed in the law as to why the objections are garbage and how your client is now prejudiced when you were unable get the information in discovery. Trust me when I tell you that this is the most important document of your motion and the primary document that a court will rely on. 

5.     Declaration.    

  • Describe the discovery that was propounded and the responses you received. Track your papers so it is easy for the court to follow.
  • Describe all meet and confer attempts that were made including oral discussions.
  • Describe the results of any Informal Discovery Conference.
  • Describe all court orders.
  • Describe in detail how your client has been prejudiced.
  • Remember to authenticate all your documents when you mention them in your moving papers and declaration.

6.          Proposed Order.  Make sure that your order is detailed the same way you would prepare an order granting a motion for summary judgement/summary adjudication This is important because there is a very good chance that an order granting your motion will be appealed by the other side. Your proposed order should include Include the following:

  • If asking for issue and/or evidence sanctions, use the language from your written discovery and have it track the Separate Statement of Items in Dispute so it will be easy reference for the court. 
  • The procedural timeline regarding the discovery in issue
  • A finding of the opposing party’s obligation in responding to the discovery and their failure to comply with their obligations.
  • A finding how your client has been prejudiced.  

Remember:  The Court has broad discretion in imposing discovery sanctions which will only be set aside arbitrary, capricious, or whimsical action by the Judge. Kayne v. Grande Holdings Ltd. (2011) 198 CA4th 1470  However, It is an abuse of discretion for the court to not award terminating sanctions for serious discovery abuses.  See Cal. Prac. Guide: Civ. Pro. Before Trial (TRG 2023) ¶8:2200 citing Doppes v. Bentley Motors, Inc. (2009) 174 CA4th 967, 996 and Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 CA4th 1265, 1271.