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When a Pro Se loses in filing for a motion to compel further responses against a represented party, can he be sanctioned by the

San Jose, CA |
Filed under: Discovery

court regardless of his income? Since a Pro Se cannot file sanction against a represented party, should he be exempted from sanction should he lose the motion?

Attorney Answers 5

  1. Yes, of course. The sanctions imposed have nothing to do with the offending party's income, The purpose of the monetary sanctions is to reimburse the attorney's fees and costs for having to make or oppose a motion that lacks merit. There is no exemption under the Civil Discovery Act. Rather, the court evaluates whether the party has or lacks "substantial justification" for making or opposing a discovery motion.

    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 posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

  2. Generally, any party who attempts to use the discovery procedures in bad faith, for the purposes of harassing, embarrassing and/or in someway improperly prejudicing an adversary, as in demanding discovery that is clearly not material or relevant to any issue in litigation, and/or continues to act in an improper manner despite court orders directing not to, can find themselves subject to an order sanctioning them, which can include monetary fines, obligation to pay the adversaries attorneys fees incurred due to the improper conduct, etc. It makes no difference if the offending party is Pro Se, and is not based on income of the party; although the failure to pay a court ortdered sanction can itself wind up being a basis for an Order that adversely affects the offending party' right to continue to prosecute or defend the action.

  3. I agree. Yes an in pro per party can be sanctioned. You may wish to hire an attorney at this pont, to level the field.

    I am licensed in California only and my answers on Avvo assume California law. The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

  4. Re: "Since a Pro Se cannot file sanction against a represented party...". I think you are confusing sanctions and attorneys fees. A pro per cannot seek an order for attorney's fees for motion practice against an opposing party.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

  5. No you can be sanctioned for the other party's atty fees, even though you can collect atty fees as sanctions against them. Motions to compel futher responses are not simple motions to prepare. There are rules to comply with as well as substantive law. There is one discovery motion judge, in San jose civil, and because of that, hearing are currently being set for mid April. They are heard on Fridays only. if your motion is defective and without substantial justification and basis, the court has now had to spend judicial resources on it, and that can affect the judges grant of sanctions. They tend to discourage people from making baseless motions and wasting everyone's time. You may want to buy an hour or two f atty time to review this with you to see if you are only setting yourself up for problems. the judges also really want to see sincere meet and confer efforts before a motion is filed.

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