Defendant refused to provide reasonable discovery. I filed a Motion to Compel and for Sanctions. The court agreed with me and ordered defendant to comply with discovery and to pay sanctions. The Order was signed by judge and served on defendant's counsel. Defendant and their counsel ignored this court Order and the deadline which was 2 weeks ago. I'm aware of sanctions under 2023.010(g). But is the next step another Motion to Compel or for Contempt? Thank you
Employment / Labor Attorney
The next step is another motion to compel pursuant to the court's order and request for additional sanctions. Set forth the precise timeline and ask that the court again order compliance or, in the alternative to issue sanctions in the form of an issue sanction or a terminating sanction. The court will usually not give you that relief on round two, but if the defendant again refuses to comply, you may get an issue sanction or terminating sanction on the third go around.
An issue sanction is one where the court determines that as a matter of law you win a particular issue about which the discovery was based. For instance, a court could rule on an issue sanction that it is conclusively established that you properly mitigated your damages (assuming that was the issue your discovery was intended to address).
A terminating sanction is where the judge strikes the answer to the complaint, thereby allowing default to be taken. In other words, you win on the liability case, and you are left to prove up damages without the other side there to fight it.
Although the defendant's conduct constitutes a violation of the court's earlier order, a motion seeking a contempt of court finding is not the way to proceed.
Good luck to you.
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Mr. Pederesen, as always, is correct and thorough. If you follow his advice, you will be taking the appropriate "next step."
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No, your next step is not another motion to compel. Your next step is to file a motion for terminating sanctions (or in the alternative, issue sanctions, evidentiary sanctions, and/or monetary sanctions).
Typically, if the court grants a motion to compel discovery or a deposition and the party fails to comply with the Court's order, the next step is to seek more serious sanctions such as issues sanctions, evidentiary sanctions, or terminating sanctions.
"The court's discretion to impose discovery sanctions is broad, subject to reversal only for manifest abuse exceeding the bounds of reason." (American Home Assurance Co. v. Societe Commerciale Toutelectric (2003) 104 Cal.App.4th 406, 435 (affirming striking of defendant's answer). Although a party requesting terminating sanctions for failure to comply with discovery obligations normally must follow the “graduated sanctions” approach, that is not required where there is no indication that the imposition of lesser sanctions would compel compliance with discovery obligations. (See, e.g., R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)
In addition, willfulness in failing to comply with discovery obligations does not require wrongful intentions; a simple lack of diligence may be deemed willful where the party knew he had an obligation, had the ability to comply, and failed to do so. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.) The party with the obligation to respond to discovery bears the burden of showing that the failure to respond or comply was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.)
A party seeking discovery need not show it was prejudiced by the responding party's conduct. (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37.) On the other hand, the sanction should be "appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) "A decision to order terminating sanctions should not be made lightly.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279.)
In California, the court may consider a party's entire conduct in the litigation in deciding whether to impose a sanction. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246 (reviewing cases in which trial courts imposed terminating sanctions "after considering the totality of the circumstances"); Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430-431 (in resolving discovery matter, trial court may rely upon "past experience" and may look to the "history of the litigation").
In conclusion, when seeking terminating sanctions in California, it is important to articulate to the court why the traditional “graduated sanctions” approach would be futile, and that the imposition of terminating sanctions is appropriate.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
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