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.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Mr. Pederesen, as always, is correct and thorough. If you follow his advice, you will be taking the appropriate "next step."
I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference
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.