DISCOVERY CASE OUTLINE
©Richard
E. Best, 1998- 2006 All Rights Reserved
SANCTIONS
CONTENTS
CASES CASE OUTLINES
SPOLIATION
The Joy
of Sanctions
Statutory Prerequisite vs. Inherent Authority of trial court to control proceedings
Individual discovery provisions
C.C.P. §2023 as independent basis for sanctioning discovery abuses
Sanctions for failing to meet and confer
C.C.P. §128.5
INHERENT
AUTHORITY: Inherent
power to control proceedings
SANCTIONS NOT MOOTED BY LATE
RESPONSES
SANCTIONS NOT MOOTED BY
VOLUNTARY DISMISSAL
SPOLIATION [ See also Spoliation Defined Preservation Duty & Spoliation]
NOTICE & DUE PROCESS
PURPOSE & FORM OF SANCTIONS
Appropriate type / excessive & lesser sanctions
NOT MANDATORY
AMOUNT OF SANCTIONS
AGAINST PROPOUNDER OF ABUSIVE DISCOVERY
AGAINST ATTORNEYS
PRO PER PARTIES [including attorneys]
PAYEE OF SANCTIONS
FINDINGS "substantial justification"
AWARD SANCTIONS
DENIAL OF SANCTIONS
ENFORCEMENT OF MONETARY SANCTIONS
VOLUNTARY DISMISSAL PRIOR TO HEARING
DOESN'T MOOT MOTION
ADDITIONAL MONETARY SANCTIONS ON
RECONSIDERATION
ISSUE, EVIDENCE & TERMINATING SANCTIONS
Dismissal: written notice required
Default: Statement of damages must be served before default taken in PI case
Appropriate to the violation
No additional non-monetary sanctions for nonpayment
Violation of prior court order prerequisite
Order violated need not be correct
Continuous, wilful, obstructive conduct or egregious interference
Lesser sanction not a prerequisite
CONDITIONAL SANCTIONS IMPROPER
MOTION FOR SANCTIONS
Notice
Presentation to Court: timing
Declaration to support of basis & amount
Justification of issue and evidentiary sanctions
Not mooted by subsequent responses
JOINDER by non-propounder
RELIEF FROM SANCTIONS
SANCTIONS AT TRIAL
ALTERNATIVES TO
DISCOVERY SANCTIONS
SANCTIONS FOR
CREATING / FABRICATING EVIDENCE
TOP
CASES
TOP
CASE
OUTLINE
STATUTORY AUTHORITY FOR SANCTIONS
Discovery Cutoff
Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) , 165 Cal.App.4th 1568 Terminating sanctions for discovery abuse reversed because granted after discovery motion cutoff date.Statutory prerequisite vs. inherent authority of trial court to control proceedings.
See below re Section 2023
Traditionally, California has required express statutory authority to impose sanctions but recent cases suggest a weakening of that restriction. Between the two extremes is Section 2023 that deals with discovery abuses in general as opposed to the specific abuses addressed in the individual discovery sections e.g. for interrogatories or documents etc.
Note that relying on only one section for authority may be a mistake; consider reliance in an appropriate case on (1) the particular discovery device provisions, (2) Section 2023 general abuse of discovery, and (3) inherent authority. When relying on specific statutory authority make sure the facts support it. See Manuel, In re Estate of Dorothy (2010) 187 Cal.App.4th 400 [no sanctions against attorney for unreasonable denial of requested admission]
Serrano v. Stefan Merli Plastering Co., Inc. (2008), No. B193502. Second Dist., Div. Three. May. 7, 2008 , Cal.App.4th
"Section 128, subdivision (a)(5) states that every court shall have the power "[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto." Section 128, subdivision (a) confirms some of the court's inherent powers, derived from the judiciary's constitutional role as a separate branch of government (Cal. Const., art. VI, § 1). (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267.) "We have often recognized the 'inherent powers of the court . . . to insure the orderly administration of justice.' [Citations.]" (Id. at p. 266.)"Olmstead v. Arthur J. Gallagher & Co. (2004), 32 Cal.4th 804, At page 809 "In Bauguess v. Paine (1978) 22 Cal.3d 626, 150 Cal.Rptr. 461, 586 P.2d 942 (Bauguess ), we held that trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority or an agreement of the parties. (Id. at pp. 634-639, 150 Cal.Rptr. 461, 586 P.2d 942.) Although Bauguess acknowledged that trial courts possess inherent powers to supervise judicial proceedings, our decision placed limits on these powers to avoid the "serious due process problems" that would arise if trial courts had unfettered authority to award fees as sanctions. (Id. at pp. 637-638, 150 Cal.Rptr. 461, 586 P.2d 942.) Hence, Bauguess prohibited a trial court from using fee awards to punish misconduct unless the Legislature, or the parties, authorized the court to impose fees as a sanction.
Transaction Commercial Vendors v. Firmaterr (1997), 60 Cal.App.4th 352 [attorney's fees assessment against opposing counsel for mistrial reversed]
In re Lemon (1981), 113 Cal.App.3d 769, 779 [The courts power to impose sanctions in connection with discovery proceedings rests exclusively upon statutory grants of authority.]
Fabricant v. Superior Court(1980), 104 Cal.App.3d 905 [criminal case; generally need statutory authority to impose attorney's fees on opponent]
Poe v. Diamond(1987),191 Cal.App.3d 1394 [prior law; award of attorney fees to deponent re'vd because no statutory authority; deposition of attorney for party was noticed but the party noticing the the deposition did not appear]
Richards v. Superior Court (1978) 86 Cal.App.3d 265, 270.["While the trial judge is vested with discretion to impose sanctions for failure of compliance with discovery orders, the sanction imposed must be appropriate to the dereliction, must be authorized by the discovery statutes, and must not exceed that which is necessary to protect the interests of the party entitled to but denied discovery." trial ct rev'd for setting aside protective order as sanction]
Bauguess v. Paine (1978) 22 Cal.3d 626.
Williams v. Travelers Ins. Co. (1975), 49 Cal.App.3d 805, 810 [evasive responses = failure to comply with order to respond and justify terminating sanctions]
Yarnell & Associates v. Superior Court (1980),106 Cal.App.3d 918 [Sanctions award for frivolous motion vacated as not authorized]
Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427, 434.(Sanctions may be awarded in connection with motion for further answers over initial objections.)
Cf. Fairfield v. Superior Court (1966), 246 Cal.App.2d 113, 120.
Petersen v. City of Vallejo (1968), 259 Cal.App.2d 757, 781. [former C.C.P. § 2034(b) sanctions may be imposed for refusal to obey a court order requiring further answers when the further answers are incomplete or evasive.]Individual discovery sections provide for sanctions; see also C.C.P. §2017.020 [sanctions re protective order motion]
Prohibition on sanctions for ESI lost etc due to routine, good faith operation of systiem if duty to preserve is not violated
C.C.P. §2031.060(i)
C.C.P. §2031.310(j)
The statutes provide that they do not affect any duty to preserve ESI
Meet & Confer sanctions C.C.P. §2023.020 [prior 2023(a)(9) 2d paragraph]
Monetary sanctions required regardless of the motion outcome
See Meet & Confer Case Outline
Volkswagenwerk Aktiengesellschaft v. Superior Court (1981), 122 Cal.App.3d 326 [prior court rules]
Mattco Forge Inc. v. Arthur Young & Co.(1990), 223 Cal.App.3d 1429
Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109 [Statutory obligation to contact a deponent after no show at deposition includes obligation to attempt to resolve deposition scheduling without a motion; attorney sanctioned for making motion based solely on C.C.P. §2023.020 predecessor]
C.C.P. §2023 as independent basis for sanctioning discovery abuses
C.C.P. § 2023.010 [prior 2023(a)] misuses of discovery enumerated but not exhausted
Pursuant to C.C.P.§2023.030, if sanctions are authorized in the sections dealing with particular discovery devices [e.g. §§2030, 2031, 2033, 2025] the sanctions that may be imposed for violations of those sections are limited to the sanctions authorized in those sections and §2023(a) or (c) cannot be used to support additional or different sanctions.
C.C.P. § 2023.030 [prior 2023(b)] strict wording not considered by appellate courts: "...to the extent authorized by the section governing any particular discovery method or any other provision of this article...the court...may impose...sanctions...."
Ellis v. Toshiba America Information Systems, Inc. (2013), 218 Cal.App.4th 853 [The Court affirmed an award of monetary sanctions against plaintiff's counsel for failure to meet and confer and for failure to comply with court order for inspection of a computer. Sanctions were based on violation of C.C.P. §2023.010, subdivisions (d), (e), (f), and (g).]Jane Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434. The Court first noted the abuse identified in C.C.P. Sec.2023 (g) & (h) and then noted, pursuant to§2023.030(a, ) the authority for imposing a monetary sanction in §2025.480(g).
New Albertsons, Inc. v. Superior Court (Shanahan) (2008), 168 Cal.App.4th 1403 [Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” (Ibid.) This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes. (London v. Dri-Honing Corp. (2004)117 Cal.App.4th 999, 1005-1006 (London) [applying former § 2023, subd. (b)]; Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1114 [same]; Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1581-1583 (Ruvalcaba) [same]; see 2 Hogan & Weber, Cal. Civil Discovery (2d ed. 2005) Sanctions, §§ 15.1,15.2 & 15.5, pp. 15-1 to 15-3, 15-15 to 15-17.)]
London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 [The Court of Appeal noted that CCP §2023(b) and §2031 must be read together but that there was an ambiguity arising from the language in CCP 2023(b): “[t]o the extent authorized by the section governing any particular discovery method . . . .” giving rise to the following alternatives
:“absorb all the procedural requirements set forth in the particular discovery method statute” including 45 day time limit ORThe Court held “...this language simply refers to whether a particular discovery method statute authorizes a specific type of sanction (i.e., monetary, issue, evidence, terminating, or contempt sanctions).” CCP §2023(b) and 2031 must be read together to determine if the “type of sanction is authorized for a specific abuse in the particular discovery statute” or “whether a particular discovery method statute authorizes a specific type of sanction”. “In both Kuhns v. State of California (1992) 8 Cal.App.4th 982 (Kuhns) and Zellerino v. Brown (1991) 235 Cal.App.3d 1097 (Zellerino), the language of section 2023, subdivision (b) involving the phrase “to the extent authorized” was used not to invoke procedural time limits of the governing discovery method statute, but to identify what types of sanctions a given discovery method statute authorized for a particular abuse.” [slip opinion p.10]
“whether a type of sanction is authorized for a specific abuse in the particular discovery statute”
Saxena v. Goffney (2008), 159 Cal.App.4th 316 , p.330-4 [error to exclude witness at trial for evasive or incomplete answer when there had been no motion or court order“ ...sanctions for misuse of the discovery process are limited "[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of [the Civil Discovery Act]." (§ 2023.030.) Thus, the sanctions available to remedy evasive or incomplete responses to interrogatories are limited to those contained in Chapter 13 of the Civil Discovery Act (§ 2030.010 et seq.).”]Sanctions for abuse of discovery
General obstruction through evasion and equivocation
Nitpicking objections
Clement v. Alegre (2009) , 177 Cal.App.4th 1277
Strained interpretation of protective order or limitations on discovery
Jane Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424 Sexual harassment of minor alleged & significant privacy matters involved. Court permitted redactions of identifying information of alleged victim and perp in other incidents.Sanctions for excessive redaction of documents produced per court order, e.g newspaper articles, constituting failure to comply without substantial justification. Court of Appeal declined to consider possible privacy rights in some instances because unrelated to the issue of whether in camera reviewof unredacted documents was required at the trial court level. The Court first noted at p.1439 that defendant “... should have sought a broader protective order or a protective order limiting the use and dissemination of the disclosed information rather than adopting a strained and over-inclusive interpretation of "identifying information." It then affirmed the trial courts decision at page 1440 based on defendant's unconvincing declaration. “Based on its own declaration and its reliance upon a patently inapt federal regulation, the superior court could reasonably conclude that U.S. Swimming had made excessive redactions without "substantial justification." “The record does not establish that, under the circumstances of this case, the court abused its discretion in refusing to hold an in camera document inspection for the purpose of deciding whether a monetary sanction was appropriate or in imposing a monetary sanction without conducting an in camera inspection.”
General Overall
frustrations of discovery
Ellis v. Toshiba America Information Systems, Inc. (2013), 218 Cal.App.4th 853 [The Court affirmed an award of monetary sanctions against plaintiff's counsel for failure to meet and confer and for failure to comply with court order for inspection of a computer. Sanctions were based on violation of C.C.P. §2023.010, subdivisions (d), (e), (f), and (g). The trial court noted "The record as we have described it above shows that Sklar did not cooperate in creating a protocol, and "strongly indicates that the purpose [of Sklar's behavior] was . . . to generally obstruct the self-executing process of discovery."]
INHERENT AUTHORITY TO CONTROL JUDICIAL PROCEEDINGS
Document Dump
Kayne v. Grande Holdings Ltd. (2011) , 198 Cal.App.4th 1470 Following objections, agreement after motion filed , disorderly document dump, failure to produce and label categories, discovery sanctions in the amount of $74,809 were awarded “...to pay the sums plaintiffs incurred to organize the documents, as a sanction for willful abuse of discovery procedure and failure to comply with sections 2023.010, 2031.280, and 2031.320.” The appellate court affirmed and held the award was not an abuse of discretion and that the motion was timely as a motion to compel compliance with the agreement reduced to a court order.
“In sum, plaintiffs incurred substantial costs in organizing the documents which Grande produced in contravention of the requirements of section 2031.280, subdivision (a), thereby employing a discovery method in such a manner as to cause undue burden and expense to plaintiffs."
“Because Grande produced no admissible evidence on the subject , the trial court concluded that Grande was responsible for the disordered state of the documents, and acted well within its discretion in ordering Grande to bear the costs of organizing the documents.”
The trial court granted two motions to compel further answers to form interrogatory 15.1 and awarded monetary sanctions. It warned that a failure to provide substantive responses could result in striking affirmative defenses. Responding party promised to provide a third supplemental response but failed to do so.
After time extensions and non-compliance, two motions to compel responses to special interrogatories of similar nature were avoided first by a response prior to the hearing and second by a declaration of non-opposition. The trial court ordered answers without objections and the responding party provided evasive responses. In opposition to the terminating sanctions, responding party provided declarations from two experts suggesting investigations had been made, opinions formed and facts did exist.
Unfulfilled promises
Mileikowsky v. Tenet Healthsystem (2005), 128 Cal.App.4th 262, 26 Cal.Rptr.3d 831 [Monetary and terminating sanctions upheld based on a "pattern of promises and stipulations for the production of discovery responses that are unfulfilled" involving"basic information on damage claims[ ] and contention interrogatories that are fundamental to respondents' ability to prepare a defense." The discovery referee found: "Sanctions are warranted under CCP §2023(a)(3), (4) and (7)" " Terminating sanctions are appropriate under CCP §2023(a) (7)." 128 Cal.App.4th at page 273. However, in discussing the Ruvalcaba case the appellate court refered to the limiting language in §2023 (b)]
False anwers
Olmstead v. Arthur J. Gallagher & Co. (2004), 32 Cal.4th 804, at p. 808 11 Cal.Rptr.3d 298. Trial court had denied sanctions for false answers to discvoery. Court of Appeal said a blatanly false answer was sanctionable. Supreme Court declined to review the section 2023 basis for sanctions. Narrow holding of case: "We now conclude that section 128.5 does not apply to post-1994 actions and proceedings.*** To the extent the Court of Appeal reached a contrary result, its judgment must be reversed.
Spoliation
Williams v. Russ (2008), 167 Cal.App.4th 1215 “Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907, overruled on other grounds in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18, fn. 4 (Cedars-Sinai.).) Such conduct is condemned because it "can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both." (Cedars-Sinai, supra, at p. 8.) While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)-(d); Cedars-Sinai, at p. 12.) A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.)
New Albertsons, Inc. v. Superior Court (Shanahan) (2008), 168 Cal.App.4th 1403 ["The general rule that we glean from these opinions is that if it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent. Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining such an order would be futile."]
Williams v. Russ (2008), 167 Cal.App.4th 1215 Terminating sanctions for intentional spoliation for failure to preserve.
Plaintiff failed to preserve and allowed critical documents to be destroyed by non-payment of storage fees before documents production was demanded in discovery.
The discovery referee found negligent spoliation and recommended an adverse inference jury instruction. The trial court rejected the recommendation because of its greater familiarity with the case, found the “destruction of the files was intentional and inferred that this was done to destroy evidence potentially favorable to plaintiff,” that plaintiff had a “duty to maintain the client file and had the burden of proving no prejudice occurred, and that intentional spoliation raised an inference of extreme prejudice. Based on the unique facts of this case, and after weighing Williams's culpability against the harm to Russ, the court concluded dismissal was the appropriate sanction because lesser sanctions would not cure the harm done.” “The court found this spoliation was highly prejudicial to Russ's defense of the case.” The appellate court affirmed finding there was no abuse of discretion. The failure to act in the face of repeated warnings of destruction provided sufficient basis for a finding of intentional destruction.
Prejudice: burden of proof can shift. Pursuant to Evidence Code 500, the burden of proof to show prejudice justifying the sanction shifted when the party seeking sanctions made a prima facie showing of prejudice and the opposing party's acts, such as the spoliation, obstruct proof of prejudice, “when one's party wrongdoing makes it practically impossible for the plaintiff to prove its case,” or when facts are “peculiarly within the responding party's knowledge”.
Spoliation. “Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907, overruled on other grounds in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18, fn. 4 (Cedars-Sinai.).) Such conduct is condemned because it "can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both." (Cedars-Sinai, supra, at p. 8.) While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)-(d); Cedars-Sinai, at p. 12.) A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.)
“Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210-212.)”
New Albertsons, Inc. v. Superior Court (Shanahan) (2008), 168 Cal.App.4th 1403 Some courts, however, have held that nonmonetary sanctions for misuse of the
discovery process may be imposed in certain circumstances not involving the sanctioned party’s failure to obey an order compelling discovery. (Do It Urself Moving
& Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27 (Do It Urself); Vallbona v. Springer (1996) 43 Cal.App.4th 1525 (Vallbona); Pate v. Channel
Lumber Co. (1997) 51 Cal.App.4th 1447 (Pate); see Williams v. Russ (2008) 167 Cal.App.4th 1215 (Williams); Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th
1202 (Karlsson); see also Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262 (Mileikowsky).
"The general rule that we glean from these opinions is that if it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in
discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent. Furthermore, a prior order may not be
necessary where it is reasonably clear that obtaining such an order would be futile."]
Vallbona v. Springer (1996), 43 Cal.App.4th 1525 [C.C.P. §2023 (a)(4) & (b)(3) basis for sanctions; no prior cout order for evidence & issue sanctions]
Do It Urself Moving & Storage Inc.(1992), 7 Cal.App.4th 27 at p. 35 [prior order for discovery not required]
Mileikowsky v. Tenet Healthsystem (2005), 128 Cal.App.4th 262, 26 Cal.Rptr.3d 831 [Monetary and terminating sanctions upheld based on a "pattern of promises and stipulations for the production of discovery responses that are unfulfilled" involving"basic information on damage claims[ ] and contention interrogatories that are fundamental to respondents' ability to prepare a defense." The discovery referee found: "Sanctions are warranted under CCP §2023(a)(3), (4) and (7)" " Terminating sanctions are appropriate under CCP §2023(a) (7)." 128 Cal.App.4th at page 273. However, in discussing the Ruvalcaba case the appellate court referred to the limiting language in §2023 (b)]
Olmstead v. Arthur J. Gallagher & Co. (2004), 32 Cal.4th 804, at p. 808 11 Cal.Rptr.3d 298. Narrow holding of case: "We now conclude that section 128.5 does not apply to post-1994 actions and proceedings.*** To the extent the Court of Appeal reached a contrary result, its judgment must be reversed. Trial court had denied sanctions for false answers to discvoery. Court of Appeal said it was sanctionable. Supreme Court declined to review the section 2023 basis for sanctions.
At p. 808 "... plaintiffs submitted a false "no" answer to a defense interrogatory inquiring whether they were pursuing any other lawsuit related to the accident. Defendants urged this conduct was sanctionable under section 2023, which prohibits "misuse[ ] of the discovery process" by, among other things, "[m]aking an evasive response to discovery." (Id., subd. (a)(6); see also id., subd. (b)(1).) The trial court granted reconsideration but denied sanctions on the merits. The court reasoned that an unequivocal, though false, answer is not "evasive" within the meaning of section 2023. Defendants appealed from the order denying sanctions. They urged that section 2023 authorized sanctions for plaintiffs' false interrogatory response, that sanctions for plaintiffs' other deceptive conduct was available under both section 128.5 and 128.7, and that the trial court had inherent authority to award sanctions in any event.****
"The Court of Appeal also determined that section 2023 authorizes sanctions for discovery "misuses" beyond those, such as "evasive" responses, that are specifically enumerated in the statute. The Court of Appeal concluded that a "blatantly false" interrogatory response, even if not technically "evasive," must qualify as a sanctionable "misuse" of the discovery process. Plaintiffs sought review on both the section 128.5 and section 2023 issues. We granted review, but we limited the issues to whether " section 128.5 authorizes sanctions."
Stull v. Sparrow (2001), 92 Cal.App.4th 860 [Dictim in rejecting monetary sanctions for failure to admit due to lack of proof at trial, the court responded to an argument about discovery gamesmanship by suggesting sanctions, though not available under C.C.P. §2033, could be awarded pursuant to §2023 (a) or (b)]
Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109, 1123 [Deposition no show due to mistake and misunderstanding; notification day prior to deposition, apology and offer to reschedule; party noticing deposition refused to confer or reset, made motion to compel and sent unpleasant letters to deponent's counsel; motion to compel attendance denied and attorney noticing deposition and making motion was sanctioned for conduct per C.C.P. §2023(a)(9) and (a)(3); Aff'd. Court found that implicit in the obligation to contact a person who fails to appear is an obligation to resolve the issue without a motion. There appeared to be no justification for failing and refusing to reset the deposition without making a motion. Although sanctions were clearly justified in keeping with the purpose, function and statutory scheme, there was no clear authority for imposing sanctions and the court did not rely on sanctions authority in C.C.P.§2025. It relied solely on C.C.P. §2023(a)(3) & (9) though the court suggested sanctions were for filing the motion and not for failing to meet and confer
Palm Valley Homeowners Assn v. Design MTC (2000), 85 Cal.App.4th 553 , 102 Cal.Rptr.2d 350 [No discovery abuse per se had occurred but the court cited C.C.P. §2023 as authority for imposing monetary sanction for conducting normal discovery for a suspended corporate client. The parties did not dispute the authority of the court to impose sanctions pursuant to C.C.P. §2023 in response to any discovery abuse whether enumerated in the discovery act or not. The appellate court concluded:"The homeowners note, as the firm concedes, that the conduct listed in Code of Civil Procedure section 2023 as sanctionable discovery abuses is not exclusive. In our view, participating in discovery on behalf of a suspended corporation, knowing that the corporation is suspended, and having reason to know or suspect that such suspension disabled the corporation from participating in the litigation, qualifies as conduct abusive of the discovery process, and thus sanctionable."]
Cedars-Sinai Medical Center v. Superior Court(1998), 18 Cal.4th 1 [court observes that destruction of evidence would be an abuse of the discovery process but see the discussion of Cedars-Sinai in New Albertsons, Inc. v. Superior Court (Shanahan) (2008), 168 Cal.App.4th 1403 suggesting reliance on discovery sanctions and compliance with prerequisites. A party accepting evasive or boilerplate responses without moving for further responses cannot later seek spoliation sanctions for not producing and destroying what it failed to pursue. the waiver of further responses includes a waiver of sanctions for not producing. The case also notes that Cedars-Sinai cautions against abuse of "spoliation" sanctions to obtain cheap victories not based on merits. ]
Kuhns v. State of California (1992), 8 Cal.App.4th 982 [sanctions for failure to obey court order for discovery but Ct App relied on §2023(b) as authority for sanctions]
Laguna Auto Body v. Farmers Ins. Exch.(1991), 231 Cal.App.3d 481 [Failure to answer interrogatories or respond to document request was specific dereliction. Sanction request based on §§2030, 2031 and 2023(a)(7). "...dismissal was the culmination of a history of acts in which appellants obstructed discovery, failed to honor their stipulation,...and defied a court order. " Dictim re "section 2023 provides that dismissal may be used as a sanction when there has been a misuse of the discovery process." followed by a quotation of §2023(a).
Juarez v. Boy Scouts of America (2000), 81 Cal.App.4th 377 [issue / evidentiary sanctions for not responding to interrogatories and document request]
Kohan v. Cohan (1991), 229 Cal.App.3d 967 [C.C.P. §2023(b)(1) sanctions for improper expert declaration]
Mattco Forge Inc. v. Arthur Young & Co.(1990), 223 Cal.App.3d 1429, 1437, 1441[C.C.P. §2023 list not exclusive; reconsideration motion was abuse of discovery within the meaning of 2023(a) and = continuation of prior motion which awarded sanctions]
Contra Zellerino v. Brown (1991), 235 Cal.App.3d 1097, lll4 [sanctions re expert disclosure limited to those specified in C.C.P. §2034]
Collisson & Kaplan v. Hartunian(1994), 2l Cal.App.4th 1611 [Basis for trial court order but not issue on appeal]
Waicis v. Superior Court (1990), 226 Cal.App.3d 283, 287
Sherman v. Kinetic Concepts (1998), 67 Cal.App.4th 1152 [C.C.P. §2023(a) authority for post trial sanctions; concealment of documents; court of appeal reversed trial court denial of sanctions and required granting new trial and full monetary compensation for prior trial plus consideration of further sanctions short of default judgment]RS Creative, Inc. v. Creative Cotton, Ltd. (1999), 75 Cal.App.4th 486 [The case may be read for the position advanced by the appellate court in the inception of its analysis: this is a spoliation case based on Cedars-Sinai. Both Cedars-Sinai and the subsequent case of Sherman v. Kinetic Concepts have suggested broader sanctioning powers than prior courts have condoned. If the spoliation theory authorizes sanctions beyond those clearly specified in the Discovery Act, courts might adopt concepts of punishment and deterrent found in federal cases but heretofore rejected in California law.]
Olmstead v. Arthur J. Gallagher & Co. (2004), 32 Cal.4th 804, (2004)
Inherent power to control proceedings as authority for sanctions
Olmstead v. Arthur J. Gallagher & Co. (2004), 32 Cal.4th 804, At page 809 "In Bauguess v. Paine (1978) 22 Cal.3d 626, 150 Cal.Rptr. 461, 586 P.2d 942 (Bauguess ), we held that trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority or an agreement of the parties. (Id. at pp. 634-639, 150 Cal.Rptr. 461, 586 P.2d 942.) Although Bauguess acknowledged that trial courts possess inherent powers to supervise judicial proceedings, our decision placed limits on these powers to avoid the "serious due process problems" that would arise if trial courts had unfettered authority to award fees as sanctions. (Id. at pp. 637-638, 150 Cal.Rptr. 461, 586 P.2d 942.) Hence, Bauguess prohibited a trial court from using fee awards to punish misconduct unless the Legislature, or the parties, authorized the court to impose fees as a sanction.
SPOLIATION
Spoliation is no longer recognized as an independent tort in
California. One rationale for the elimination of the independent
tort was that the destruction of evidence could be remedied within
the existing action by discovery sanctions or otherwise. It was
suggested in the Cedars-Sinai case that the destruction of
evidence was an independent abuse of discovery under C.C.P. §2023
that could give rise to appropriate pretrial sanctions within the
pending action. It was not made clear whether this was an
expansion of the sanction powers of the trial court. Spoliation
issues arguably beyond the express terms of the Discovery Act
would include the duty to preserve evidence absent a formal
request or specific order and the imposition of exemplary or
punitive sanctions. In addition, an issue not addressed is whether
the imposition of spoliation sanctions would require the proof of
elements and findings by the court heretofore required by the
independent tort of spoliation. Cedars-Sinai and its
progeny plus the RS Creative case and the Sherman v.
Kinetic Concepts case suggest or support an expansion of the
sanctions powers of the trial court. In addition, numerous cases
have cited the broad and non-exclusionary language of C.C.P.
§2023(a) alone to justify discovery sanctions. The RS Creative
case suggests that exemplary sanctions are authorized and that the
tort elements need not be proven. Legislation was proposed in 2001
to add the destruction of documents as item 10 in the list of
discovery abuses set forth in C.C.P. §2023(a) but no action was
taken that year on the bill.
Based on the cases set forth below, the spoliation sanction in
California may be described as follows:
Unless justified by the responsible party, the intentional or negligent destruction, concealment, alteration or failure to preserve documents, data, information, or other evidence, reasonably known, at the time when it is eliminated, to be relevant to the issues or subject matter of reasonably knowable, pending or probable litigation, shall be subject to appropriate sanctions imposed in the pending action against a party if and to the extent such elimination of potential evidence is a reasonably certain cause of the substantial impairment of or significant prejudice to the ability to prove or disprove an element of the cause of action or defense .
Intentional, grossly negligent or other culpable conduct , done for the purpose of destroying or preventing the use of evidence or without reasonable concern for preserving evidence, and proximately causing the destruction or unavailability of relevant evidence in known pending or reasonably imminent litigation, may result in exemplary or punitive sanctions in order to adequately compensate the victim of such conduct or to deter future culpable conduct.
See also New Albertsons, Inc. v. Superior Court
(Shanahan) (2008), 168 Cal.App.4th 1403 "Some courts,
however, have held that nonmonetary sanctions for misuse of the
discovery process may be imposed in certain circumstances not
involving the sanctioned party’s failure to obey an order
compelling discovery. (Do It Urself Moving
& Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7
Cal.App.4th 27 (Do It Urself); Vallbona v. Springer (1996) 43
Cal.App.4th 1525 (Vallbona); Pate v. Channel
Lumber Co. (1997) 51 Cal.App.4th 1447 (Pate); see Williams v. Russ
(2008) 167 Cal.App.4th 1215 (Williams); Karlsson v. Ford Motor Co.
(2006) 140 Cal.App.4th
1202 (Karlsson); see also Mileikowsky v. Tenet Healthsystem (2005)
128 Cal.App.4th 262 (Mileikowsky)."
"The general rule that we glean from these opinions is that if it
is sufficiently egregious, misconduct committed in connection with
the failure to produce evidence in
discovery may justify the imposition of nonmonetary sanctions even
absent a prior order compelling discovery, or its equivalent.
Furthermore, a prior order may not be
necessary where it is reasonably clear that obtaining such an
order would be futile."]
See Spoliation
annotated
See Preservation Duty &
Spoliation
Spoliation not recognized as independent tort in California
Cedars-Sinai Medical Center v. Superior (1998), 18 Cal.4th 1 [No independent tort cause of action for intentional spoliation of relevant evidence by party to underlying action]
Temple Community Hospital v. Superior Court (1999), 20 Cal.4th 464 [No independent tort cause of action against nonparty or 3rd party for intentional spoliation of relevant evidence]
Farmers Insurance Exchange v. Superior Court (2000), 79 Cal. App.4th 1400 [Since there is no independent tort for intentional spoliation, there cannot be one for negligent spoliation]
Coprich v. Superior Court (2000), 80 Cal.App4th 1081, 1083, Review Denied July 26, 2000. ["…there is no tort remedy for negligent spoliation."]Spoliation recognized as sanction in pending case
The FORTUNA--Krause, et al. Claimants (March 17, 1817) 15 U.S. 161, 4 L Ed. 209, 2 Wheat 161 [concealment of documents may result in adverse presumption or adverse determination]
Williams v. Russ (2008), 167 Cal.App.4th 1215. "Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907, overruled on other grounds in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18, fn. 4 (Cedars-Sinai.).) Such conduct is condemned because it "can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both." (Cedars-Sinai, supra, at p. 8.) While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)-(d); Cedars-Sinai, at p. 12.) A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.)
"Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210-212.)"Cedars-Sinai Medical Center v. Superior Court (1998), 18 Cal.4th 1 [Rationale for eliminating the independent tort of spoliation is, in part, that such delicts can be addressed in the underlying lawsuit by existing remedies, such as discovery sanctions, evidentiary inferences and jury instructions, by attorney discipline, or by criminal prosecution. The Supreme Court left undetermined whether it was creating a new sanction that might include punitive damages but did suggest that destroying documents was an abuse of the discovery process that would subject a party to discovery sanctions.]
Cedars-Sinai Medical Center v. Superior Court (1998), 18 Cal.4th 1 [The court concluded that the remedy for spoliation could be discovery sanctions but did not suggest that the available sanctions would be expanded to include punitive damages or that the elements of the independent tort cause of action need be established as a prerequisite to an award of sanctions based on spoliation.]
Coprich v. Superior Court (2000), 80 Cal.App4th 1081, 1089; [In fn.4 the court stated, "Sanctions for abuse of discovery are less likely where the misconduct was negligent as opposed to intentional, although they are not necessarily unavailable".]
Penn v. Prestige Stations, Inc. (2000), 83 Cal.App4th 336, p. 343 "…even following Cedars-Sinai, the intentional destruction of evidence needed in litigation is subject to severe sanctions in the litigation itself, in administrative proceedings against lawyers who participate in such destruction, and in our criminal justice system. 'Thus Cedars-Sinai did not alter the prohibition against destroying evidence needed in litigation; rather, it only changed the nature of the remedy available when a violation of the prohibition occurs.' "
RS Creative, Inc. v. Creative Cotton, Ltd. (1999), 75 Cal.App.4th 486
[The court suggests it is the first court since the Cedars-Sinai case to apply the spoliation concept but lacks analysis of either tort elements or discovery sanction concepts. The Appellate Court found there had not been an abuse of discretion by the trial court in awarding monetary sanctions and dismissing the action. Both the trial and appellate courts suggested that they were imposing punishment for prior conduct contrary to most California precedent. At the same time the monetary sanctions awarded were only a small fraction of the amount requested and incurred. See also Munshani v. Signal Lake Venture Fund II (Mass. App. Ct. 3/26/04), 805 N.E.2d 998 A judgment of dismissal where the court dismissed a complaint based on the inherent power of a court to sanction and for committing a fraud on the court when a fraudlent e-mail was used to avoid a statute of frauds defense. See also Plasse v. Tyco Elecs. Corp., 2006 WL 2623441 (D. Mass.9/7, 2006) ]
Mileikowsky v. Tenet Healthsystem (2005),128 Cal.App.4th 262, 26 Cal.Rptr.3d 831 [recognizing RS Creative case as involving "spoliation" sanctions]
Monetary and terminating sanctions upheld based on a "pattern of promises and stipulations for the production of discovery responses that are unfulfilled" involving"basic information on damage claims[ ] and contention interrogatories that are fundamental to respondents' ability to prepare a defense." The discovery referee found: "Sanctions are warranted under CCP 2023(a)(3), (4) and (7)" Monetary sanctions in the past have not successfully gained [Dr. Mileikowsky's] attention" and " Terminating sanctions are appropriate under CCP 2023(a) (7)." 128 Cal.App.4th at page 273. Numerous motions to compel and monetary sanctions had been granted; five motions for terminating sanctions had been made and counsel and the party had been expressly warned of terminating sanctions on the third motion. The appellate court treated a stipulation to discovery and its enforcement to be the equivalent of an order compelling discovery.
See Willard v. Caterpillar (1995), 40 Cal.App.4th 892 [discussion of elements of independent tort of spoliation by defendant in pending case, including jury instructions]
See Sherman v. Kinetic Concepts (1998), 67 Cal.App.4th 1152 [Although the Appellate Court does not purport to be imposing spoliation sanctions, concealment of evidence resulted in a new trial, significant compensation to opposing counsel and an instruction to the trial court to impose additional sanctions short of a default judgment.See also Plasse v. Tyco Elecs. Corp., 2006 WL 2623441 (D. Mass. 9/7/06)]
Spoliation exception to litigation privilege. Civil Code § 47(b)(2)
"(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, "physical evidence" means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Section 2031 of the Code of Civil Procedure."
AB 1260 was introduced in the 2001 session and proposed the addition of a new discovery abuse to the C.C.P. §2023(a) list: "(10) Destruction of relevant evidence." The Supreme Court in the Cedars-Sinai case had suggested that destruction of evidence would be an abuse of discovery within C.C.P. § 2023 and subject to sanctions.
THIRD PARTY INTENTIONAL / NEGLIGENT SPOLIATION CASESTemple Community Hospital v. Superior Court (1999), 20 Cal.4th 464 [No independent tort cause of action against non-party or 3rd party for intentional spoliation of relevant evidence; product liability; hospital failed to preserve evidence per request; Def. mfg prevailed on summary judgment due to lack of evidence; Def hospital still in case and spoliation could be brought to attention of jury; opinion based on weighing benefit vs burden and costs to society of multiple lawsuits, lack of finality, disproportionate punishment, uncertainty of effect of spoliation vs. risk of wrong decision, costs of reconstructing or finding alternative evidence; lack of alternative sanctions 4-3 DECISION
Farmers Insurance Exchange v. Superior Court (2000) 79 Cal. App.4th 1400 [Since there is no independent tort for intentional spoliation, there cannot be one for negligent spoliation; passenger sued insurance company for not preserving car that could be evidence in product liability case. Rehearing Denied May 16, 2000.Review Denied July 26, 2000
Coprich v. Superior Court (2000), 80 Cal.App4th 1081, 1083, Review Denied July 26, 2000. [Tire blowout on rental car; preservation of evidence requested; demurrer of rental car agency's and its insurer to plaintiffs' claims for intentional and negligent spoliation of evidence sustained without leave to amend; Plaintiff appealed judgment on negligent spoliation issue. Judgment affirmed. No cause of action for negligent spoliation. " We conclude the policy considerations that caused the court in Cedars-Sinai and Temple Community to find that there is no tort remedy for intentional spoliation of evidence also compel the conclusion that there is no tort remedy for negligent spoliation. However, we direct the trial court to grant the plaintiffs leave to amend the complaint to allege a cause of action for breach of a contractual duty to preserve." p.1083 ; "We conclude that the policy considerations concerning intentional spoliation discussed by the court in Cedars-Sinai and Temple Community apply equally to negligent spoliation, but they do not preclude a cause of action for breach of a contractual duty to preserve evidence." P.1085; "We therefore conclude there is no tort remedy for first party or third party negligent spoliation of evidence." P.1090; In fn4 p. 1089 the court stated, "Sanctions for abuse of discovery are less likely where the misconduct was negligent as opposed to intentional, although they are not necessarily unavailable. (See Code Civ. Proc., §2023, subd. (a)(4), (7); Kohan v. Cohan (1991), 229 Cal.App.3d 967, 970, 280 Cal.Rptr. 474 [a misuse of the discovery process need not be willful to be sanctionable".]
Johnson v. United Service Automobile Assoc. (1998) 67 Cal.App.4th 626 [upheld negligent spoliation c/a against 3rd party if duty exits; duty must arise from agreement, specific request or undertaking with detrimental reliance or offer to pay costs,; Ins CO had no duty to preserve Plt's car for use in product liability lawsuit; no specific request, no agreement and no voluntary undertaking to preserve car; defective seat belt suspected and attorney inspected car with accident reconstruction expert and removed portion of seat belt; Ins CO paid $300,000 policy limits; Plt settled with mfg for $500,000; spoliation claim to jury; verdict entered on special verdict re no duty to preserve; No duty arises from constructive knowledge]
Reid v. State Farm Mut.Auto Ins. Co. (1985), 173 Cal.App.3d 557 [No duty of Ins.Co. To preserve absent a request; lack of notice and knowledge]
Smith v. Superior Court (1984), 151 Cal.App.3d 491 [Duty based on express promise to preserve evidence; assumed viable c/a if duty exists citing SC Williams v. State of Calif. (1983) 34 Cal.3d 18; Intentional spoliation in initial case. Tire flew off and blinded Plt; dealer express promise to preserve; Intentional destruction or loss of evidence; dealer knew it was essential evidence and Plt was relying on preservation agreement; allege malice, reckless indifference and conscious disregard; significant prejudice to recovery;]
CALIFORNIA SPOLIATION TORT ELEMENTS
RELEVANT EVIDENCE
Relevant to issues [
Willard v. Caterpillar (1995), 40 Cal.App.4th 892; Cedars-Sinai Medical Center v. Superior Court (1998), 18 Cal.4th 1, pp.4,8, 17 ]
Williams v. Russ (2008), 167 Cal.App.4th 1215
Pending or probable litigation
Williams v. Russ (2008), 167 Cal.App.4th 1215Relevant to subject matter is likely standard but causation and damage requirements have effect of requiring greater relevancy to impose sanctions
Willard instructions"(1) that documentation relevant to the issues in this case at one time existed;
"(2) that documentation relevant to the issues in this case was subsequently destroyed;Williams v. Russ (2008) , 167 Cal.App.4th 1215KNOWLEDGE [actual or reasonably should have known ]
Williams v. Russ (2008) , 167 Cal.App.4th 1215
Actually aware OR reasonably foreseeable
Willard v. Caterpillar;
Smith v. Superior Court (1984) 151 Cal.App.3d 491;
Velasco v. Commercial Bldg. Main. Co. (1985), 169 Cal.App.3d 874 ]
At time of destruction
Pending or probable litigation
Issues in litigation
Document relevant to issues
Willard instructions:
"(3) that at the time documentation relevant to the issues in this case was destroyed it was reasonably foreseeable litigation would involve those issues;
"(4) that at the time of the document destruction, Caterpillar was aware of the reasonably foreseeable litigation;
KNOWLEDGE OF THIRD PARTY
No duty of 3d party absent an agreement, specific request or undertaking with detrimental reliance or offer to pay costs, statutory obligationFarmers Insurance Exchange v. Superior Court (2000), 79 Cal. App.4th 1400
Johnson v. United Service Automobile Assoc. (1998), [No 3rd party duty arises from constructive knowledge]
Reid v. State Farm Mut.Auto Ins. Co. (1985), 173 Cal.App.3d 557 [No duty of Ins.Co. To preserve absent a request; lack of notice and knowledge]
Coprich v. Superior Court (2000), 80 Cal.App4th 1081, 1083, Review Denied July 26, 2000. [Tire blowout on rental car; preservation of evidence requested. No c/a for 3d party "However, we direct the trial court to grant the plaintiffs leave to amend the complaint to allege a cause of action for breach of a contractual duty to preserve." p.1083]
Smith v. Superior Court (1984), 151 Cal.App.3d 491 [Duty based on express promise to preserve evidence; Tire flew off and blinded Plt; dealer express promise to preserve; Intentional destruction or loss of evidence; dealer knew it was essential evidence and Plt was relying on preservation agreement]
Dunham v. Condor Ins Co. (1997), 57 Cal.App.4th 24 [Request for access not = request for preservation]
Intent to cause harm may give rise to punitive damages
Moral blame; policy of preventing harm; cost of discharging duty, cost/benefit analysis
REASONABLY FORESEEABLE HARMWillard instruction (3)
"that at the time documentation relevant to the issues in this case was destroyed it was reasonably foreseeable litigation would involve those issues"
Velasco [janitor disposal of bag with broken bottle left unmarked on attorney's desk; lack of foreseeability of reasonable janitor; attorney should have marked or otherwise protected his evidence]
Williams v. Russ (2008) , 167 Cal.App.4th 1215
DESTRUCTION [intentional, negligent, failure to preserve]Williams v. Russ (2008), 167 Cal.App.4th 1215 ["destruction or significant alteration of evidence or the failure to preserve"]
Documents existed [Willard]
Documents destroyed after know relevant evidence [Willard]
Intentional Destruction
Willful
Willard,
Williams v. Russ (2008), 167 Cal.App.4th 1215]
Intent to interfere with lawsuit may only relate to malice and punitive damages sought in Willard
Willard instruction: "(5) that at the time of the document destruction, Caterpillar intentionally destroyed the relevant documentation because of reasonably foreseeable litigation
Negligent Destruction [Cedars-Sinai, unable to produce documents; intentional spoliation alleged]
Failure To Preserve [
Williams v. Russ (2008) , 167 Cal.App.4th 1215 (failure to pay storage bills when known threat of destruction by owner of storage for failure to pay); Cedars-Sinai; Willard, bone fide, reasonable, consistent, routine document destruction not actionable]
Alteration
Williams v. Russ (2008), 167 Cal.App.4th 1215Shifting of burden to party destroying documents to justify destruction
Willard [existence of alternative sources of proof negates harm]
The Fortuna [when documents were required to be maintained and presented, the absence or delay in production must be explained]
CAUSATION: Document destruction / ability to prove case impairedEvidence destruction causing inability to prove lawsuit [Willard]
Substantially impaired ability to prove case [Willard, Smith]
Willard instruction: "(7) that there is a causal connection between the document destruction and plaintiff's inability to prove this lawsuit
Willard instruction: "(8) Damages caused in substantial part by the acts of Caterpillar in destroying such evidence."
Alternative evidence available [Willard]
DAMAGESability to prove lawsuit
substantially impaired [Willard]; significant prejudice [Valence]
Willard instruction "(6) that plaintiff's ability to prove his case has been substantially impaired by the destruction of the documentation";
Williams v. Russ (2008) , 167 Cal.App.4th 1215 [burden of proof to show prejudice justifying the sanction shifted when the party seeking sanctions made a prima facie showing of prejudice and the opposing party's acts, such as the spoliation, obstruct proof of prejudice, “when one's party wrongdoing makes it practically impossible for the plaintiff to prove its case,” or when facts are “peculiarly within the responding party's knowledge”.
reasonable certainty of fact and amount [Smith]
See alsoHildreth Mfg. v. Semco, Inc., 2003 WL 359309 (Ohio Ct App. 2/20/03) [Theft of trade secrets on magnetic tape taken by former employee. TRO prohibited "destroying, concealing, or altering in any fashion any documents," including those contained on the hard drives of its computers." Discovery sought to image hard drives including those controlling lathe operation that might cause damage or injure employees. While issue pending, mfg removed HD w/o def objections, Unknown to def., HD erased by mfg. and recycled to other customers. Spoliation claim and request for default judgment and attorney fees denied despite destruction of data and failure to comply with TRO because no reasonable possibility that the missing hard drives contained evidence that would have been favorable to claims. Presumption of harm from destruction of potential evidence "rebutted ... by showing that a reasonable possibility did not exist that access to the requested evidence would have produced evidence favorable to Semco that was otherwise unattainable." No abuse of discretion.]
Exemplary or punitive damagesWillard [judgment rev'd; no malice found by jury]
Smith [malice alleged at demurrer stage]REMEDIES
Spoliation Sanctions
Williams v. Russ (2008), 167 Cal.App.4th 1215 Terminating sanctions for spoliation, ie. not
In a legal malpractice action, Plaintiff obtained from defendant and stored its client files in public storage. Defendant had only copied correspondence before releasing files pursuant to a state bar rule. The complaint was subsequently amended based on evidence Plaintiff found in the files. Plaintiff was warned that non-payment of storage fees would result in their loss but failed to take corrective action or advise defendant. After destruction and after a second amended complaint was filed and 19 months after the documents had been turned over to Plaintiff by Defendant, a formal discovery request was made for production of the documents.
The discovery referee found negligent spoliation and recommended an adverse inference jury instruction. The trial court rejected the recommendation because of its greater familiarity with the case, found the “destruction of the files was intentional and inferred that this was done to destroy evidence potentially favorable to plaintiff,” that plaintiff had a “duty to maintain the client file and had the burden of proving no prejudice occurred, and that intentional spoliation raised an inference of extreme prejudice. Based on the unique facts of this case, and after weighing Williams's culpability against the harm to Russ, the court concluded dismissal was the appropriate sanction because lesser sanctions would not cure the harm done.” “The court found this spoliation was highly prejudicial to Russ's defense of the case.” The appellate court affirmed finding there was no abuse of discretion. The failure to act in the face of repeated warnings of destruction provided sufficient basis for a finding of intentional destruction.
Evidentiary inferencesEvidence Code §§ 412-13
Walsh v. Caidin (1991), 232 Cal.App.3d 159, 164-165, 283 Cal.Rptr. 326
Bihun v. AT&T Information Systems, Inc. (1993), 13 Cal.App.4th 976, 994-995; 16 Cal.Rptr.2d 787Discovery sanctions [money, issue, evidence, default or dismissal]
Code Civil Procedure, §2023
Cedars-Sinai Medical Ctr. v. Superior Court (1998), 18 Cal.4th 1
Sherman v. Kinetic Concepts (1998), 67 Cal.App.4th 1152
See also Trigon Ins. Co. v. United States (E.D.Va. 2001), 204 F.R.D. 277 [The court carefully examined the facts and awarded full monetary sanction for consequences of spoliation including payment for computer forensic expert to recover documents, exclude expert when spoliation prevented adequate cross examination, allow adverse inferences against another expert when recovery of spoliated documents permitted cross exam. At page 291, "Considering the degree of culpability, the quantum of prejudice and the least sever but most effective, sanction...."]Exemplary or punitive sanctions
Willard [judgment rev'd; no malice found by jury]
Smith [malice alleged at demurrer stage]
RS Creative, Inc. v. Creative Cotton, Ltd. (1999), 75 Cal.App.4th 486 [dismissal and monetary damages awarded after "spoliation" issue removed from case by amendment of complaint and discovery]Attorney discipline
CriminalPen. Code, § 135;
Smith v. Superior Court (1984) 151 Cal.App.3d 491, 497-500
See C.C.P. §2023.030 re notice requirements and see CONDITIONAL SANCTIONS below
Lack of notice
Sole Energy Co. v. Hodges (2005), 128 Cal.App.4th 199 [Conditional sanctions disapproved; warning of sanctions to be imposed insufficient substitute for notice; notice must be adequate to satisfy statute and due process]
London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 [Not issue on appeal but trial court denied sanctions initially due to lack of due process; it granted sanctions covering the costs of both motions when a subsequent motion for sanctions was heard. As to a party opposing a discovery motions the court noted “It could file its notice of sanctions any (reasonable) time after the moving party filed its motion,”]
Trail v. Cornwell (1984), 161 Cal.App.3d 477 [written noticed motion required]
Blumenthal v. Superior Court(1980), 103 Cal..App.3d 317 [trial court rev'd for awarding sanctions against attorney when no notice was given that sanctions would be sought against the attorney and attorney did not appear at the hearing]
Corralejo v. Quiroga (1984), 152 Cal.App.3d 871 , 199 Cal.Rptr. 733 [128.5 sanctions]
Jones v. Otero (1984), 156 Cal.App.3d 754 [Request at trial without notice & in absence of opposing attorney;dismissal request solicited by judge for attorney failure to pay $ ]Inadequate notice
O'Brien v. Cseh (1983), 148 Cal.App.3d 957, 962 [Ex parte motion on 24 hrs telephonic notice "flagrant violation of due process principles."]
Ellis v. Roshei Corp (1983), 143 Cal.App.3d 642,647 fn.5 [Five day notice in responding papers may not satisfy due process]Waiver of objection
Alliance Bank v. Murry (1984), 161 Cal.App.3d 1 [Court cannnot authorize improper notice but appearance and opposition on merits is a waiver and consent]
Denial of Sanctions when substantial justification or injustice would result
Crippen v. Superior Court (1984), 159 Cal.App.3d 254, 261 [Sanctions vacated by Court of Appeal; ambiguity of law and reversal of trial court for misinterpreting law showed substantial justification]
Consider prior conduct in determining whether and what sanctions appropriate
Manzetti v. Superior Court (1993), 21 Cal.App.4th 373, 379 [discovery continually frustrated. "In deciding this matter, we necessarily reviewed and considered the entire record of this discovery dispute from the original demand for inspection to the filing of the second petition. Only in this way we are able to determine the merits of the second and pending petition and the motivation for filing it. In short , we are entitled to consider petitioners' prior conduct with respect to the discovery dispute to decide if sanctions are justified."]
Laguna Auto Body v. Farmers Ins. Exch.(1991), 231 Cal.App.3d 481 [History of of obstruction of discovery, failure to honor stipulations, failure to respond to discovery or oppose motiions and defying court orders; continued wilful violation of discovery act; reasonable to infer from responses that they were designed to obstruct and delay. "Dismissal was the culmination of a history of acts in which appellants obstructed discovery, failed to honor their stipulation,And defied a court order. ...The failure or refusal of party to submit voluntarily to discovery which is inevitable can only be viewed as an attempt to harass the opposition or as a technique to churn attorney's fees." Dissent claimed dismissal was punishment.Dismissal affirmed.]
Electronic Funds Solutions v. Murphy (2005), 134 Cal.App.4th 1161, 36 Cal.Rptr.3d 663
"The record provides ample support for the trial court's actions. Specifically, plaintiffs were forced to repeatedly file motions to compel on three sets of document requests and two sets of specially prepared interrogatories. With one exception, the court granted each of the motions and imposed monetary sanctions. Defendants' persistent failure to comply with the court's discovery orders resulted in a discovery stay and continuance of the trial. Significantly, in one of its discovery orders imposing monetary sanctions, the trial court specifically warned defendants, in capital letters no less, that any further failure to comply with the court's discovery orders could result in terminating sanctions. Although plaintiffs based their motion for terminating sanctions on a host of discovery abuses, one in particular demonstrates the egregious nature of their actions.***
Given defendants' brazen violation of a discovery order in the face of an express warning that terminating sanctions could be issued, the trial court could have reasonably concluded a lesser sanction would not have been sufficient to compel compliance and that terminating sanctions were necessary to provide plaintiffs' with the due process to which they were equally entitled."Obtain the objectives of discovery; not punishment of party or attorney.
Cf RS Creative, Inc. v. Creative Cotton, Ltd. (1999), 75 Cal.App.4th 486 case plus Sherman v. Kinetic Concepts (1998), 67 Cal.App.4th 1152 and Cedars-Sinai Medical Ctr. v. Superior Court (1998), 18 Cal.4th 1. Such cases provide a basis for the expansion of sanctions into the punitive area similar to federal practice.
Williams v. Russ (2008), 167 Cal.App.4th 1215, 1223["Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct."]
Caryl Richards, Inc. v. Superior Court (l961) 188 Cal.App.2d 300, 305. ["While under the statute the court undoubtedly has the power to impose a sanction which will accomplish the purpose of discovery, when its order goes beyond that and denies a party any right to defend the action or to present evidence upon issues of fact which are entirely unafffected by the discovery procedure before it, it not only abuses its discretion but deprives the recalcitrant party of due process of law." Trial court had twice ordered further answers and had ordered monetary sanctions due to evasive answers. When further answers were evasive the court struck the answer. Reversed. Establishing facts would accomplish purposes of discovery and striking answer was excessive and punitive.]
Electronic Funds Solutions v. Murphy (2005),134 Cal.App.4th 1161, 36 Cal.Rptr.3d 663 Terminating discovery sanctions were affirmed but judgment in excess of the amount requested in complaint was reversed.
Terminating sanctions appear to have been based on the destruction of evidence on a computer hard drive after the court ordered its production and warned of more severe sanctions. The data was destroyed by using Data Eraser to wipe the hard drive after the order to produce but before production. The erasure of data also appeared to be a violation of a prior order requiring production of all requested data including e-mail contained on the hard drive. Because of the history of thwarting discovery, and of requiring motions, orders and the imposition of monetary sanctions on prior motions, the court was not required to impose a lesser sanction. In upholding terminating sanctions, the court stressed its limited review standard and the record of abuse to conclude a lesser sanctions might not be adequate to remedy the abuse."Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. [Citations.] For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that '"'are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.'"'" (Rail Services of America v. State Comp. Ins. Fund (2003)110 Cal.App.4th 323, 331-332.) In other words, discovery sanctions exist {Slip Opn. Page 30} "not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court." (Welgoss v. End (1967) 252 Cal.App.2d 982, 992.
***
"Given defendants' brazen violation of a discovery order in the face of an express warning that terminating sanctions could be issued, the trial court could have reasonably concluded a lesser sanction would not have been sufficient to compel compliance and that terminating sanctions were necessary to provide plaintiffs' with the due process to which they were equally entitled."
Laguna Auto Body v. Farmers Ins. Exch.(1991), 231 Cal.App.3d 481, 487 ["Discovery sanctions 'should be appropriate to the derelection, and should not exceed that which is required to protect the interest of the party entitled to but denied discovery.' Deyo v. Kilbourne(1978)...Young v. Rosenthal...." ]
Motown Record Corp v. Superior Court(1984), 55 Cal.App.3d 482, at p.484 [party one day late in complying with court order to supply detailed description of documents and factual basis for claim of attorney-client privilege; court imposed waiver of privilege and awarded monetary sanctions. Sanction of privilege waiver found excessive, punitive and not reasonably related to effecting the discovey due]No windfalls: not more than party would obtain through discovery.
McGinty v. Superior Court (1994), 26 Cal.App. 4th 204 [good summary of cases and discussion re basic principles; general protective order issued in similar products liability case in Illinois; expert retained in California action; California trial court found violation of protective order and ordered return of documents and preclusion of expert from testifying in Calif. action; writ issued for abuse of discretion in imposing excessive sanctions that were imposed solely for punishment and to deter violation of court orders; Purpose of sanctions is not punishment, forfeiture or avoidance of trial on the merits; penalty must be appropriate to the derelection not exceeding that required to protect the interests of the person entitled to but denied discovery; person should not be placed in a better position than they would enjoy from favorable discovery]
Thomas v. Luong (1986), 187 Cal.App.3d 76 [default against absent defendant when attorney would admit liability was abuse of discretion; penalty should be appropriate to dereliction and should not exceed that required to protect the party seeking but denied discovery; lesser sanctions should be imposed if they adequately protect the legitimate interests of the person seeking discovery; stipulation on the issue or subject matter can eliminate the need for discovery]
Wilson v. Jefferson (1985), 163 Cal.App.3d 952 [default judgment in legal malpractice for failure to comply with court order rev'd.; sanctions should have been restricted to subject matter of discovery rather than entire cause of action; sanctions should be appropriate to the dereliction, should not exceed that required to protect the person denied discovery, and should not put the aggrieved person in a better position than they would have been in with favorable discovery]
Rail Services of America v. State Comp. Ins. Fund (2003), 110 Cal.App.4th 323, 331 "Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917; People v. Lockwood (1998) 66 CAl.App.4th 222, 230.) For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that " ' "are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment" ' " (Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64, quoting Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782, italics added.) [2] When only one cause of action remains as to which discovery is needed, it is obviously unnecessary to dismiss any cause of action save that one to give the defendant, one way or another, the object of the discovery sought to be compelled. To dismiss as a sanction causes of action already resolved by way of summary adjudication -- with the result that they would be unavailable for appellate review -- would be a punishment, not a remedy.
"SCIF contends that the trial court dismissed the entire action as the sanction. The record does not demonstrate that this was the court's intent. If the trial court had intended to dismiss the entire case as a sanction, that would have been an abuse of discretion. That is not the case here, however. The discovery with which plaintiffs refused to comply related only to the remaining second cause of action; thus, the only sanctionable conduct necessarily related to that one cause of action. A discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) Here, at best, SCIF could have prevailed at trial of the second cause of action only."Mandatory sanctions because intent that discovery proceed smoothly & swiftly
Professional Career Colleges v. Superior Court(1989), 207 Cal.App.3d 490, 494 [party failing to timely move for further answers over objections repropounded interrogatory, got same objections and moved to compel. Following Vidal Sasoon, court found no jurisdiction for hearing the motion and granted sanctions]
Compensation of a party for expenses and attorney's fees unnecessarily incurred in enforcing discovery
McGinty v. Superior Court (1994) 26 Cal.App. 4th 204, 210 [Summary of case law; sanction that is pure punishment intended to deter court order violations is excessive and inappropriate.]
Appropriate type / excessive & lesser sanctions
B of P re lesser sanction. Person asserting appropriateness of lesser sanction may have obligation to present issues and demonstrate how lesser sanction achieves purpose of discovery
Hartbrodt v. Burke(1996), 42 Cal.App.4th 168, 173 [dismissal for refusing to produce tapes of conversations between parties that went to core issues; Dismissal for failure to comply with order over 5th amendment objection aff'd.; lesser sanction argument rejected on appeal; "Appellant had the opportunity to review the transcript, to identify issues susceptible to preclusion, and to fashion and propose the orders he now divines would resolve his dilemma, but he nonetheless failed to take those steps. It was not the task of the trial court to extricate appellant by inventing solutions which were not proposed and not obviously available or acceptable."]
Not for punishment for failure to pay monetary sanctions
Newland v. Superior Court (1995), 40 Cal.App.4th 608
Hurtado v. Western Med.Ctr.(1990), 222 Cal.App.3d 1198, 1204
Midwife v. Bernal(1988), 203 Cal.App.3d 57,6
Jones v. Otero (1984), 156 Cal.App.3d at p.754 [dismissal for attorney failure to pay sanctions]Contra: Twentieth Century Ins.Co v. Tak Hung Choong (2000), 79 Cal.App.4th 1274 [Monetary sanctions pursuant to C.C.P. §177.5 imposed but not paid; trial court imposed additional monetary sanctions and propriety of 2d award was sole issue on appeal; aff'd]
Appropriate sanctions - examples
Hardbrodt v. Burke(1996), 42 Cal.App.4th 168 [dismissal for refusing to produce tapes of conversations between parties that went to core issues; lesser sanctions were considered insufficient]
Brown v. Presley of So.Cal.(1989)213 Cal.App.3d 612. [abuse of discretion to dismiss for failure to attend court ordered deposition when attorney had conflict, offered to compensate opponent and to attend deposition without motion]
Caryl Richards, Inc. v. Superior Court (l961) 188 Cal.App.2d 300, 305. [Trial court had twice ordered further answers and had ordered monetary sanctions due to evasive answers. When further answers were evasive the court struck the answer. Reversed. Establishing facts would accomplish purposes of discovery and striking answer was excessive and punitive. "While under the statute the court undoubtedly has the power to impose a sanction which will accomplish the purpose of discovery, when its order goes beyond that and denies a party any right to defend the action or to present evidence upon issues of fact which are entirely unafffected by the discovery procedure before it, it not only abuses its discretion but deprives the recalcitrant party of due process of law."]
County of Orange v. Superior Court (1985), 170 Cal.App.3d 954. [striking ans. too severe for untruthful answer.,delay, evasion etc. when party got information from other sources]
Puritan Ins. Co. v. Superior Court (1985), 171 Cal.App.3d 877. [Expert's inability to produce object per court order justified preclusion of object but not photo or testimony based on photo]
Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757[No abuse of discretion to dismiss complaint when evasive answers regarding factual basis for negligence contention.]Wilson v. Jefferson(1985), 163 Cal.App.3d 952,958[ Striking answer excessive when delict related only to affirmative defense.]
Morgan v. Ransom (1979) 95 Cal.App.3d 664.[Dismissing action for failure to answer interrogatories re vexatious litigant was excessive when establishing such fact would accomplish purpose of discovery.]
Stein v. Hassen (1973) 34 Cal.App.3d 294, 302.[Court reviewed pleadings to determine merits of case before striking the answer in order to avoid awarding a windfall.]
In Re Lemon(1981), 113 Cal.App.3d 769, 782-84 [Monetary sanctions may be limited to expenses related to particular abuse before court.]
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793. ["The penalty 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."]
Garza v. Delano Union Elementary School Dist. (1980) 110 Cal.App.3d 303. [dismissal excessive; trial date vacated; plt. poor and unable to travel from Mexico despite attorney requests; no prior court orders and discovery deferred due to agreement or acquiescence]
Richards v, Miller(1980 LA App.)106 Cal.App.3d Supp. 13. [Suggests the trial court may have to make an express finding of prejudice to support the sanction.]
Motown Record Corp. v. Superior Court (1984), 55 Cal.App.3d at p.484, 490 [imposing waiver of privilege as sanction excessive]Preclusion of evidence at trial Code of Civil Procedure section 2034 (b)(2)
A & M Records v. Heilman (1977) 75 Cal.App.3d 554.[C.C.P. § 2019(b) protective order.]
MONETARY SANCTIONS
NOT MANDATORY in strict sense
Not strictly "mandatory": award unless (1)substantial justification or (2)unjust
Mattco Forge v. Arthur Young & Co. (1990), 223 Cal.App.3d 1429. [Legislative intent re 1986 revisions: Shift the cost to the abuser who is presumptively the loser]
Standon v. Superior Court (1990), 225 Cal.App.3d 898, 904. [Trial court directed to reconsider sanctions issues when it mistakenly believed sanctions were mandatory]Mandatory sanctions because intent that discovery proceed smoothly & swiftly
Professional Career Colleges v. Superior Court(1989), 207 Cal.App.3d 490, 494 [reserving same interrogs after failing to timely move over objection]
Mandatory in connection with deemed admitted motion; this is the latest version of the request for admissions procedure and requires a noticed motion for matters to be deemed admitted; in exchange for the additional notice and opportunity to respond, the responder must compensate the propounder for the additional expense incurred in making the motion and obtaining the order. Prior procedures automatically deemed matters admitted if not denied timely.
Curtesy Claims Serv. v. Superior Court (1990), 219 Cal.App.3d 52
Prior law similar: Statutory changes in 1986 were more form than substance. Prior law required moving party to show wilful violation or failure without substantial justification but such was defined by the case law as knowledge of duty, ability to comply, and failure to comply; real burden was on the derelict party to justify its failure. Wrongful intent was never required. The Courts sanctioned a conscious or intentional failure to act as opposed to an accidental or involuntary noncompliance
Alliance Bank v. Murry (1984), 161 Cal.App.3d 1 [at p.11, "While appellant claims he could not attend the June 1 deposition due to a court calendar conflict, he nevertheless wilfully chose to not attend the deposition. Appellant made no showing below that he attempted to obtain a stipulation or order continuing the court matter in Pomona. Thus appellant took a calculated risk in choosing to ignore the May 20 court order, the May 20 stipulation of counsel that the deposition would go forward on June 1, and the notice of deposition. The taking of such a calculated risk was wilful conduct. (See Housing Authority v. Gomez (1972) 26 Cal.App.3d 366, 372 [102 Cal.Rptr. 657].) "[5] A wilful 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. (Snyder v. Superior Court (1970) 9 Cal.App.3d 579, 587 [89 Cal.Rptr. 534].)" (Deyo v. Kilbourne, supra, 84 Cal.App.3d at pp. 787-788.) The fact that appellant had to represent his client in court does not in itself excuse his wilful conduct"]
Fred Howland Co. v. Superior Court (1966) 244 Cal.App.2d 605, 610.[Lack of diligence by attorney or party in preparing answers]
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.
Snyder v. Superior Court (1970) 9 Cal.App.3d.579 [No show at deposition; acting on advice of counsel no defense] See also, Housing Authority v. Gomez (1972) 26 Cal.App.3d 366.
Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250.
Frates v. Treder (1967) 249 Cal.App.2d 199.[Failure of party to advise attorney of his location so that he can respond to discovery is willful.]Burden of proof on derelict party to show conduct was not wilful under prior law or substantial justification for conduct under current law
Cornwall v. Santa Monica Dairy Co.(1977) 66 Cal.App.3d 250.
Frates v. Treder (1967) 249 Cal.App.2d 199, 204.(Wilful as to one party because no justification was offered, p. 205)
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788.
Weinkauf v. Superior Court (1966) 64 Cal.App.2d 662, 665.(Burden of proof is on attorney to show it was blameless for failure to answer interrogatories.)
Reasonable [C.C.P. §§2023.030(a) "reasonable expenses, including attorney's fees, incurred" as a result of the conduct]
Do v. Superior Court (Nguyen) (2003), 109 Cal.App.4th 1210 , 134 Cal.Rptr.2d 734 ["The amount of the award shall be based upon the reasonable value of legal services rendered to petitioner as a result of real party's failure to attend the depositions, the subsequent motion, court appearances, and the proceedings in this court." {Slip Opn. Page 11}]
Marriage of Nicklas (1989), 211 Cal.App.3d 28, 37 [court must determine amount incurred was reasonable]
Ghanooni v. SuperShuttle (1993), 20 Cal.App.4th 256 [$2100 reasonable for motion to compel medical exam in 1993 when no significant issue involved]
Make whole; if not, the person seeking discovery that is supposed to be self-executing is penalized and abuses are rewarded.
Marriage of Nicklas (1989), 211 Cal.App.3d 28 [Make whole re costs resulting from the failure to provide discovery and the expenses of procuring it; showing re affidavit; C.C.P. § 2023 (a) & (c)] p. 38 "We do not hold that the sum of $45,000 is excessive, but only that (1) the evidence must be sufficient to support a finding that the amount of sanctions (whether in this figure or some other) reflects the amount spent or incurred by husband in an attempt to obtain compliance with discovery, and (2) the record must reflect a determination by the trial court that such amount spent or incurred was reasonable.]
Lund v. Superior Court (1964), 61 Cal.2d 698, 713 [In dictum in footnote 8 the court stated " FN.8 In some instances the statute provides that the court, when passing upon a motion to order compliance with a request for discovery, may direct the losing party to pay the costs of his opponent. But such jurisdiction is expressly limited to ordering payment of the cost of bringing or defending such motion, and does not include the right to order payment of costs incurred by reason of failure to make discovery prior to an order directing the same. (See various subdivisions of Code Civ. Proc., § 2034.)" ]Tenderloin Housing Clinic v. Sparks (1992), 8 Cal.App.4th 299 [C.C.P. § 128.5 required same standard re amount; $1860 sanctions imposed to cover inter alia airfare & costs of 4 days vacation]
Mattco Forge Inc. v. Arthur Young & Co.(1990), 223 Cal.App.3d 1429 [Unnecessary to base sanctions on failure to meet and confer or on C.C.P. 128.5. Reconsideration motion was continuation of the prior motion, was an abuse of discovery within the meaning of C.C.P. 2023(a), and was sanctionable under C.C.P.2030 et. seq.
London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 [ Defendant successfully objected on due process grounds to a consideration of sanctions on the initial motion. When a separate motion for sanctions was made, defendant argued it was untimely in violation of the 45 day rule. The trial court's award of compensation for both motions was approved.]
No penalty
Ghanooni v. SuperShuttle (1993), 20 Cal.App.4th 256, p.262 [expenses incurred in obtaining discovery; Tr.Ct. rev'd. for imposing $1000 penalty]
Dwyer v. Crocker National Bank (l987),194 Cal.App.3d 1418. [Court as expert re 128.5 sanctions]
Lund v. Superior Court (1964), 61 Cal.2d 698Restrictions on the amounts etc. of default judgments apply to discovery sanctions
Greenup v. Rodman (1986), 42 Cal.3d 822
Electronic Funds Solutions v. Murphy (2005),134 Cal.App.4th 1161, 36 Cal.Rptr.3d 663 Terminating discovery sanctions were affirmed but judgment in excess of the amount requested in complaint was reversed.
See C.C.P. § 580 re limit on relief to amount of demand
See C.C.P. § 425.11 re prohibition on entry of default until statement servedEvidentiary showing should be sufficient to support court determination of reasonableness of fees requested and awarded
Nazemi v. Tseng (1992), 5 Cal.App.4th 1633, 1642 [Knowledge and experience of trial judge sufficient basis for determination of attorney's fee award; declaration, testimony or other direct evidence not required]
Marriage of Nicklas (1989)[Cursory description of services is inadequate; evidence must support amount incurred & court must determine that it is reasonable]London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 [unopposed declaration; if oppose supply a declartion to support]
C.C.P. § 2023.040 affidavit requirement
Dwyer v. Crocker National Bank (l987)194 Cal.App.3d 1418. [Court as expert re 128.5 sanctions]Findings by trial court helpful: see below
Reasonableness of fees [see Marriage of Nicklas]
Lack [or failure to show] of substantial justification for failure to provide discovery not required
Must find substantial justification for conduct if deny sanctions
AGAINST
PROPOUNDER OF ABUSIVE DISCOVERY
Sanctions may be awarded against propounder of abusive or frivolous interrogatories
United Farm Workers of America v. Superior Court (1975) 47 Cal.App.3d 334, 347.
Deyo v. Kilbourne (1978), 84 Cal.App.3d 771, 789.
Not for bad faith denial of requested admission pursuant to C.C.P. §2033.420 [consider Section 2023 alternative?]
Manuel, In re Estate of Dorothy (2010) 187 Cal.App.4th 400 [Sanctions for unreasonable denial of a request for admission pursuant to C.C.P. §2033.420 cannot be assessed against counsel, only the party, based upon the clear wording of the statute.]Notice required
Blumenthal v. Superior Court (1980), 103 Cal..App.3d 317
Corralejo v. Quiroga (1984), 152 Cal.App.3d 871 [notice for 128.5 sanctions against attorney required too satisfy due process]B of P on attorney to show did not advise
Estate of Ruchti (1993), 12 Cal.App.4th 1593 [Attorney served with deposition notice while taking deposition sought to resolve matter but opponent did not respond forcing a motion for protective order. Motion and monetary sanctions granted by trial court. Aff'd.]
Weinkauf v. Superior Court (1966) 64 Cal.App.2d 662, 665.[Burden of proof is on attorney to show it was blameless for failure to answer interrogatories.]Failure to communicate with client
Andrews v. Superior Court (1960) 183 Cal.App.2d 756.[Prior law for sanctions against attorney advising improper conduct. Contempt and monetary sanctions against attorney reversed when only finding was that attorney was responsible for failure to appear at deposition due to inadequate attempts to notify clients. Attorney attempted to notify client of court ordered deposition one day prior thereto)
Attorney advised conduct
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [Attorney sanctioned $2400 for instructing client not to answer questions on relevancy grounds. Instruction only appropriate on privilege grounds]
Ghanooni v. Super Shuttle (1993), 20 Cal.App.4th 256, at p.261 [Burden of proof on attorney to show that did not advise improper conduct. Finding required that attorney advised conduct; decision may be based on prior discovery law]
Palm Valley Homeowners Assn v. Design MTC (2000) 85 Cal.App.4th 553 , 102 Cal.Rptr.2d 350 [Sanctions awarded against attorney pursuant to C.C.P. §§128.5 and C.C.P. §§2023 for knowingly representing a suspended corporation without disclosure of the suspension to the court or opposing counsel though no discovery abuses per se had occurred.]Attorney of Record
Capotosto v. Collins(1991), 235 Cal.App.3d 1439 [Sanctions per C.C.P. §§128.5 in favor of attorney who had not substituted into case rev'd; no sanctions against or in favor of attorney not of record]
Findings required re attorny?; note changes in statute
Andrews v. Superior Court (1960), 183 Cal.App.2d 756
Ghanooni v. Super Shuttle (1993), 20 Cal.App.4th 256, p.261
Midwife v. Bernal (1988), 203 Cal.App.3d 57 [prior law, proper to award]
IN FAVOR?: may not be permitted if Supreme Court rationale is
followed since no actual attorney's fees incurred;
however most recent case upheld 128.7 sanctions in favor or pro
per attorney & attorneys not paid by clients on per hour basis
Do v. Superior Court (2003)109 Cal.App.4th 1210 , 134 Cal.Rptr.2d 734
Monetary sanctions for failure to appear for deposition may be awarded to compensate pro bono attorney representing indigent defendant. The Court recognized the important function of sanctions in controlling discovery abuses and concluded "...we conclude that fees or monetary sanctions in the form of fees may be ordered where the award does not result in disparate treatment between litigants. And this is true whether or not a party actually "incurs" additional fees as a result of the opposing party's conduct as is the case here where the party is represented by a lawyer who does not charge a fee."]
Musaelian v. Adams (2009), 45 Cal.4th 512 No attorney fees for attorney representing itself.
"We hold therefore that an attorney who responds in pro se to a filing abuse may not recover sanctions under section 128.7 in the form of an award of attorney fees. Laborde v. Aronson, supra, 92 Cal.App.4th 459, and Abandonato v. Coldren, supra, 41 Cal.App.4th 264, are disapproved to the extent they are inconsistent with our holding here."
The Court distinguished attorneys representing themselves from attorneys representing other litigants but who may not receive specific compensation for specific:
“in-house attorneys, like private counsel but unlike pro se litigants, do not represent their own personal interests and are not seeking remuneration simply for lost opportunity costs that could not be recouped by a nonlawyer.” [citation] Similarly, privately or publicly funded legal services providers representing indigent parties, or attorneys litigating on a contingency fee basis, are not representing their own personal interests or seeking remuneration for lost opportunities."
Disapproved Laborde v. Aronson (2001) 92 Cal.App.4th 459, 112 Cal.Rptr.2d 119, [Plaintiff sued attorney and expert from prior divorce action. Summary judgment granted based on litigation privilege and CCP128.7 sanctions awarded to both. Sanctions awarded to attorney appealed on grounds he represented himself and did not pay or incur any liability for attorney fees; judgment affirmed. The court did not discuss the Argaman decision and followed Abandonato. At page 469: "The Abandonato court relied in part on a policy consideration we find persuasive here: "Holding that the attorney in that situation could not be compensated for reasonable expenses would create a separate and artificial category of litigants who would be inadequately protected against another party's bad faith tactics." ... In other words, if the point of these statutes is to deter bad faith tactics and frivolous litigation, it makes no sense to declare such tactics acceptable against attorneys or nonattorneys representing themselves in such matters."]
Kravitz v. Superior Court (2001), 91 Cal.App.4th 1015 [2d district followed Argaman and Trope and rejects Abandonato in denying attorney fees as sanctions to attorney representing himself though it notes this defeats the purpose of sanctions as a means of controlling discovery abuses and suggest legislation]
Argaman v. Ratan (1999), 73 Cal.App.4th 1173 [Court applied plain wording and followed Trope v. Katz in denying monetary sanctions on post judgment discovery on rationale that since no one had to pay attorney's fees they had not been "incurred" and that an attorney's time is not a "reasonable expense". It rejected Abandonato v. Coldren in part on the assumptions that alternative and meaningful sanctions were available in this post judgment proceeding and that a non-attorney could not be awarded sanctions.]Trope v. Katz (1995), 11 Cal.4th 274 [Attorney pro `per cannot collect attorney fees per contract]
Cf. Abandonato v. Coldren (1995), 41 Cal.App.4th 264 [Attorney fees by pro per attorney upheld as being "incurred" per C.C.P. § 128.5]
SEE ALSO
In re Marriage of Adams (1997) 52 Cal.App.4th 911
Lolley v. Campbell (2002) 28 Cal.4th 367
Ketchum v. Moses (2001) 24 Cal.4th 1122
PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084
Person authorized by statute to receive award
Poe v. Diamond (1987), 191 Cal.App.3d 1394. [prior law; award to attorney re'vd because payment to attorney not authorized by former statute 2019(g)]
FINDINGS TO SUPPORT AWARD
SANCTIONS
Comment. Discovery sanctions have never required the traditional findings in the form of findings of fact and conclusions of law or a statement of decision. However, cases have required the simple "finding" in the form of the statutory language used in the sanctions provisions such as an express finding the a prohibited act was "wilful" or "without substantial justification" under prior statutory language. . Even though sanctions may be perfectly appropriate, appellate courts have vacated orders that did not recite the required statutory language. The Do case followed that practice of requiring the current finding or statutory language to be in the order or otherwise in the record. Counsel should include the language in formal orders that might reasonably be required such as reciting that attorney's fees awarded are "reasonable". Note that other sanctions provisions do require findings in to support the order.
"Substantial Justification"
Diepenbrock v. Brown (2012) , 208 Cal. App. 4th 743 Sanctions / Substantial Justification. "[C]onflicting legal authority on an unsettled issue provided substantial justification for appellants' position, negating the basis for the sanction order." Marital privilege issue raised by non-party spouse being deposed on punitive damages financial issue. Conflicting motions were filed to compel answers and for protective order to prevent questions on the issue and both sides sought sanctions. The Trial Court “observed...to me the privilege under 970 is clear and so that was the reason for the sanctions." While there was no analysis or holding as to the marital privilege, the Court of Appeal noted that one secondary source recognized a conflict in views on the law and held that was substantial justification for the losing party to oppose the motion.
Jane Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1440. Pushing the envelope with excessive redactions in interpreting protective provisions provisions in an order compelling document production. “The record does not establish that, under the circumstances of this case, the court abused its discretion in refusing to hold an in camera document inspection for the purpose of deciding whether a monetary sanction was appropriate or in imposing a monetary sanction without conducting an in camera inspection.”
"substantial justification": “well-grounded in both law and fact;” “clearly reasonable, i.e., it had a reasonable basis in law and fact"; “justified to a degree that would satisfy a reasonable person.” p.1434
“ for example, showing that it had reasonably construed the protective order even if the court had something else in mind” p. 1436
“The burden of proving 'substantial justification' for failing to comply with a discovery order compelling answers or production of documents and opposing a motion to compel compliance is on the losing party claiming that it acted with 'substantial justification.' ” p.1435
No findings required under current statute unless sanctions denied. Cases suggesting other findings are normally based on statutes and case law prior to the current Discovery Act [see below]
California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16 [express findings only required if sanctions denied; detail and particularity not required; only general findings re "substantial justification" for conduct or "injustice" from awarding sanctions;]
Do v. Superior Court (Nguyen) (2003), 109 Cal.App.4th 1210 , 134 Cal.Rptr.2d 734 [In an issue raised by the court it concluded; "Because there was no finding that real party's failure to appear at the scheduled depositions was "with substantial justification or that other circumstances make the imposition of the sanction unjust" (§2025, subd. (j)(3)), petitioner is entitled to monetary sanctions."]
Estate of Ruchti (1993), 12 Cal.App.4th 1593, at p.1603
Mattco Forge Inc. v. Arthur Young & Co.(1990), 223 Cal.App.3d 1429, p. 1438 [no need for written findings since not based on C.C.P. §128.5 but on C.C.P. §2031 and §2023]
Ghanooni v.Super Shuttle (1993), 20 Cal.App.4th 256 , p. 261
Kohan v. Cohan (1991), 229 Cal.App.3d 967, p.971
Prior statutes provided for sanctions when conduct was "wilful" or "without substantial justification" and case law required that conclusory finding to support an award. Orders lacking the required conclusory finding were reversed. Current statutes and case law based thereon does not require that conduct be wilful or without substantial justification or that such findings be made.
Olmstead v. Gallagher [rev'd on narrow ground re CCP 128.5 sanctions at (2004), 32 Cal.4th 804 ][court noted that conduct need not be wilful to result in sanctions when party suggested conduct was result of mistake citing Ghanooni v. Super Shuttle and Kohan v. Cohan ]
Clement v. Alegre (2009) , 177 Cal.App.4th 1277 ["There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed." (Cal. Civil Discovery Practice (Cont.Ed.Bar 4th ed. May 2009 update) § 15.94, p. 1440, citing Code Civ. Proc. § 2023.030, subd. (a); 2 Hogan & Weber, Cal. Civil Discovery (2d ed. 2004) Sanctions, § 15.4, p. 15-8 ["Whenever one party's improper actions -- even if not 'willful' -- in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party." (Fn. omitted)]; Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)
Order should reflect findings of lack of substantial justification and reasonableness of expenses and attorneys' fees awarded suggested by the current statute even if not legally required. See cases under prior law.Deyo v. Kilbourne (1978), 84 Cal.App.3d 771, 787.
Fairfield v. Superior Court (1966), 246 Cal.App.2d 113.
Duggan v. Moss (1979), 98 Cal.App.3d 735.
FINDINGS TO SUPPORT DENIAL OF SANCTIONS
Parker, v. Wolters Kluwer United States (2007), 149 Cal.App.4th 285Findings that opposition was without substantial justification are not required when sanctions are granted. Monetary sanctions are required on the “first offense” unless the court makes an express finding that the failure to provide discovery was “without substantial justification.”Do v. Superior Court (2003)109 Cal.App.4th 1210 , 134 Cal.Rptr.2d 734 "The subdivision further states: 'If this motion is granted, the court shall also impose a monetary sanction under Section 2023 against the deponent . . ., unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.' (Italics added.) The trial court made no such finding here. Therefore, considering the mandatory language of the statute, it would seem petitioner is entitled to sanctions." At p. 1218 the court reiterated and held "Because there was no finding that real party's failure to appear at the scheduled depositions was "with substantial justification or that other circumstances make the imposition of the sanction unjust" (§ 2025, subd. (j)(3)), petitioner is entitled to monetary sanctions."]
California Shellfish v. United Shellfish (1997), 56 Cal.App.4th 16[express findings only required if sanctions denied; detail and particularity not required; only general findings re "substantial justification" for conduct or "injustice" from awarding sanctions;]
Estate of Ruchti, 12 Cal.App.4th 1593, p.1603
ENFORCEMENT OF
MONETARY SANCTIONS
Order to pay money enforced by execution as with judgment [C.C.P. § 680.230]
Newland v. Superior Court (1995), 40 Cal.App.4th 608
Jones v. Otero (1984), 156 Cal.App.3d 754
Midwife v. Bernal (1988), 203 Cal.App.3d 57Additional sanctions for failing to pay
Twentieth Century Ins.Co v. Tak Hung Choong (2000), 79 Cal.App.4th 1274 [Monetary sanctions imposed pursuant to C.C.P. §177.5 imposed but not paid; trial court imposed additional monetary sanctions and propriety of 2d award was sole issue on appeal; aff'd]
ADDITIONAL MONETARY
SANCTIONS ON RECONSIDERATION
Mattco Forge Inc. v. Arthur Young & Co.(1990), 223 Cal.App.3d 1429 [Unnecessary to base sanctions on failure to meet and confer or on C.C.P. 128.5. Reconsideration motion was continuation of the prior motion, was an abuse of discovery within the meaning of C.C.P. 2023.010, and was sanctionable under C.C.P.2030 et. seq.
London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 [ Defendant successfully objected on due process grounds to a consideration of sanctions on the initial motion. When a separate motion for sanctions was made, defendant argued it was untimely in violation of the 45 day rule. The trial court's award of compensation for both motions was approved.]
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390 [sanctions ultimately quadrupled]
VOLUNTARY DISMISSAL
PRIOR TO HEARING DOESN'T MOOT MOTION
Hardbrodt v. Burke (1996), 42 Cal.App.4th 168 [Cannot avoid terminating by dismissal of action without prejudice just prior to hearing. Trial court dismissed action with prejudice. Aff'd. See Kyle v. Carmon(1999), 71 Cal.App.4th 901 limiting restriction on dismissal to avoid sanctions to cases involving termination on the merits.]
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390 [full response without objections does not deprive the court of jurisdiction to hear motion to compel and for sanctions]
ISSUE, EVIDENCE & TERMINATING SANCTIONS
Issue and evidentiary sanctions
In re Marriage of Chakko (2004)115 Cal.App.4th 104, Issue sanctions affirmed. "The District Attorney attempted to obtain through discovery the tax returns and other financial records required to determine Father's income, a necessary step in determining the amount of child support he was required to pay. For eight months father refused to produce his most basic and readily available records: tax returns, general ledgers, profit and loss statements, check registers and the like. During this time, the best information available concerning his actual income was the loan application Father used to refinance the mortgage on his $2,500,000 house. According to his mortgage broker, the application was prepared using the very documents that Father refused to produce in discovery. The trial court's "issue sanction" directly addressed the discovery violation because it provided the district attorney with the very information that Father refused to provide voluntarily: evidence of his income or access to funds tantamount thereto."
Juarez v. Boy Scouts of America (2000), 81 Cal.App.4th 377 [Boy Scouts sued for sexual molestation by volunteer. Interrogatories and document discovery re complaints. Two motions and monetary sanctions granted. Trial CT established facts that no reports were made and no information was available to defendant. CT App. considered this sanction to be an evidence preclusion sanction and upheld the sanction stating at p. 389 that it "...simply prohibited Juarez from producing at trial the evidence that he repeatedly refused to product during discovery".
Karz v. Karl (1982), 137 Cal.App.3d 637, 648-9
Dismissal: written notice requiredJones v. Otero (1984), 156 Cal.App.3d 754 [court solicited motion at trial in absence of attorney for failure of attorney to pay monetary sanction; "Dismissal can never be an appropriate remedy for an attorney's noncompliance with an order imposing monetary sanctions."
Default:
C.C.P. § 580 limitations on amount of judgment apply to discovery sanctionsDamages limited by complaintGreenup v. Rodman (1986 ), 42 Cal.3d 822 [damages cannot exceed prayer on default judgment enterred as discovery sanction]
Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans (2011) , Cal.App.4th “The question presented here is whether a plaintiff may recover attorney fees incurred in a case terminated in his or her favor as a discovery sanction where the complaint contains a request for an unspecified amount of attorney fees. Put another way, does a complaint have to specify by dollar amount the attorney fees that will be incurred and sought in a case ultimately resolved by a default judgment entered as a discovery sanction?
“We answer that question in the negative....”
Morgan v. So. Cal. Rapid Trans Distr.(1987), 192 Cal.App.3d 976 [reversed] [C.C.P. § 425.11 must be satisfied by serving notice of amount prior to entry of default; Interrog ans. insufficient as substitute]
Schwab v. Randel Homes(1991), 53 Cal.3d 428 [This case presents the question of whether a plaintiff's failure to serve notice of damages upon a defendant pursuant to Code of Civil Procedure sections 425.10 and 425.11fn. 1 precludes the plaintiff from taking a default against the defendant. We conclude that a plaintiff may not take a default against a defendant without giving the defendant actual notice as required by statute.]
Surgin Surgical Instrumentation Inc. v. Truck Insurance Exch. (1998), Cal.App.4th [$57.8mil default judgment resulting from discovery abuses and entry of default reversed for failure to give notice of dgs.sought]
Steven M. Garber & Assoc. v. Eskandarian (2007) , 150 Cal.App.4th 813 Terminating sanctions for not complying with order compelling further responses.
“Appellants' contention that a statement of damages should have been filed before the default was taken is without merit. A statement of damages is required only in cases involving personal injuries or wrongful death. (Code Civ. Proc., § 525.11.)”
Electronic Funds Solutions v. Murphy (2005),134 Cal.App.4th 1161, 36 Cal.Rptr.3d 663 Terminating discovery sanctions were affirmed but judgment in excess of the amount requested in complaint was reversed.
Terminating sanctions appear to have been based on the destruction of evidence on a computer hard drive after the court ordered its production and warned of more severe sanctions. The data was destroyed by using Data Eraser to wipe the hard drive after the order to produce but before production. The erasure of data also appeared to be a violation of a prior order requiring production of all requested data including e-mail contained on the hard drive. Because of the history of thwarting discovery, and of requiring motions, orders and the imposition of monetary sanctions on prior motions, the court was not required to impose a lesser sanction. In upholding terminating sanctions, the court stressed its limited review standard and the record of abuse to conclude a lesser sanctions might not be adequate to remedy the abuse."Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. [Citations.] For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that '"'are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.'"'" (Rail Services of America v. State Comp. Ins. Fund (2003)110 Cal.App.4th 323, 331-332.) In other words, discovery sanctions exist {Slip Opn. Page 30} "not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court." (Welgoss v. End (1967) 252 Cal.App.2d 982, 992.
***
"Given defendants' brazen violation of a discovery order in the face of an express warning that terminating sanctions could be issued, the trial court could have reasonably concluded a lesser sanction would not have been sufficient to compel compliance and that terminating sanctions were necessary to provide plaintiffs' with the due process to which they were equally entitled.""In the complaint, plaintiffs sought damages 'in an amount in excess of $50,000.' Defendants contend the complaint thus limited recoverable compensatory damages to $50,000. We agree." The $24 mil. judgment was based upon a "statement of damages" requesting over $8 mil. compensatory and $16 mil punitive damages "Because the complaint in the present case did not seek damages for personal injury or wrongful death, plaintiffs' statement of damages fails to provide the formal notice required before plaintiffs may obtain compensatory damages exceeding the amount requested in the complaint. Consequently, we must reverse the judgment." Alternatively, the court permitted plaintiff to amend the complaint to seek greater damages but the default would be set aside.
Judgment re liability only; require jury trial on damagesJohnson v. Pratt & Whitney (1994), 28 Cal.App.4th 613 [precludes limiting damages to prayer as with default}
Local practice may require a separate default money prove up hearing
Sanction of judgment by default is res judicata re: issues pleaded in complaint.Kahn v. Kahn (1977) 68 Cal.App.3d 372.
Appropriate to the violation
Issue/ Evidence/ Terminating must be appropriate to the delict. See above re appropriate sanctionsNewland v. Superior Court (1995), 40 Cal.App.4th 608
Vallbona v. Superior Court (1996), 43 Cal.App.4th 1525
Caryl Richards Inc. v. Superior Court(1961), 188 Cal.App.2d 300.CF RSCreative, Inc. v. Creative Cotton, Ltd. (1999), 75 Cal.App.4th 486 [suggests punitive sanctions for conduct may be appropriate. See also Munshani v. Signal Lake Venture Fund II (Mass. App. Ct. 3/26/04), 805 N.E.2d 998 where a judgment of dismissal where the court dismissed a complaint based on the inherent power of a court to sanction and for committing a fraud on the court when a fraudlent e-mail was used to avoid a statute of frauds defense]
Rail Services of America v. State Comp. Ins. Fund (2003), 110 Cal.App.4th 323, 331 "Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917; People v. Lockwood (1998) 66 CAl.App.4th 222, 230.) For instance, when the rule or order violated concerns discovery, the trial court may impose sanctions that " ' "are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment" ' " (Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64, quoting Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782, italics added.) [2] When only one cause of action remains as to which discovery is needed, it is obviously unnecessary to dismiss any cause of action save that one to give the defendant, one way or another, the object of the discovery sought to be compelled. To dismiss as a sanction causes of action already resolved by way of summary adjudication -- with the result that they would be unavailable for appellate review -- would be a punishment, not a remedy.
"SCIF contends that the trial court dismissed the entire action as the sanction. The record does not demonstrate that this was the court's intent. If the trial court had intended to dismiss the entire case as a sanction, that would have been an abuse of discretion. That is not the case here, however. The discovery with which plaintiffs refused to comply related only to the remaining second cause of action; thus, the only sanctionable conduct necessarily related to that one cause of action. A discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) Here, at best, SCIF could have prevailed at trial of the second cause of action only."
No additional non-monetary sanctions for non-payment of monetary sanctions; RD denial of due process
Newland v. Superior Court (1995), 40 Cal.App.4th 608
Midwife v. Bernal(1988) [RD non-payment doesn't create presumption that position lacks merit; refusal of disc.= admit no merit]
Jones v. Otero(1984), 156 Cal.App.3d 754[dismissal for non-payment by attorney rev'd]
Violation of prior court order may not be a prerequisite for more severe sanctions under proper circumstances
Contra: Saxena v. Goffney (2008), 159 Cal.App.4th 316 , p.330-4 [error to exclude witness at trial for evasive or incomplete answer when there had been no motion or court order “...sanctions for misuse of the discovery process are limited "[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of [the Civil Discovery Act]." (§ 2023.030.) Thus, the sanctions available to remedy evasive or incomplete responses to interrogatories are limited to those contained in Chapter 13 of the Civil Discovery Act (§ 2030.010 et seq.).”]
See the statutory language for additional sanctions in particular discovery sections
e.g. C.C.P. §2030.290(2)(c)
"If a party then fails to obey an order compelling answers, the court may impose [issue, evidence or terminating sanction]"
Cf. C.C.P. §2023.030 "to the extent authorized" by another individual section, a court may impose sanctions
(a)monetary
(b)issue
(c)evidence &
(d)terminating
sanctions
Courts have appeared to ignore the language in C.C.P. §2023.030 that requires authorization from another section to impose sanctions and have imposed sanctions for an "abuse" or "misuse of discovery" under C.C.P. §2023.010. See above
Parker, v. Wolters Kluwer United States (2007), 149 Cal.App.4th 285
Vallbona v. Superior Court (1996), 43 Cal.App.4th 1525 [prior order futile since party claimed documents had been stolen; clear record of abuse; stolen docs produced at trial; evidence preclusion + jury instruction establishing facts]
Ruvalcabo v. Government Employees Insurance (l990), 222 Cal.App.3d 1579 [dismissal reversed since no court order violated despite history of discovery abuse and non-compliance; "These laws carefully delineated the precise steps to be taken for discovery abuses, mandated monetary sanctions for some abuses and gave the court discretion to impose other types of sanctions in appropriate circumstances. As outlined in the statutory scheme, sanctions were specifically drawn in accordance with the goal of discovery, i.e., the disclosure of information. The statutes clearly indicated a preference for voluntary compliance with discovery.
The code required the disobedience of a court order as a prerequisite for dismissal based upon discovery abuses and recognized that lesser sanctions, appropriate for the particular abuse, should be granted before a terminating sanction, such as dismissal, was utilized. [citation] Although prior case law indicated a prior order was not mandated [citations], the new legislation acknowledged that dismissal was a drastic sanction [citation] which should only be used after a party had an opportunity to comply with a court order. By requiring disobedience to a court order before a matter could be terminated, courts were assured that the derelict party had no intention of complying with the discovery request. This requirement also enforced the court's interest in compelling obedience to its orders and process. "]
Mileikowsky v. Tenet Healthsystem (2005),128 Cal.App.4th 262, 279, 26 Cal.Rptr.3d 831 [The appellate court followed Ruvalcabo but treated a stipulation to discovery and its enforcement to be the equivalent of an order compelling discovery.
“The issue becomes whether the stipulation can be seen as tantamount to the requisite order. We see no reason why it cannot.
***
“The stipulation signed by counsel for the parties here was designed to avoid the "trouble and expense" of yet another hearing on Dr. Mileikowsky's failure to respond to simple discovery requests. Like the order that would have issued, the stipulation made clear that respondent "may file a motion for sanctions, including but not limited to, issue, evidence or terminating sanctions, if they do not receive [Dr. Mileikowsky's] supplemental discovery responses by [February 15, 2002]." By signing the stipulation, counsel essentially waived Dr. Mileikowsky's right to insist on a formal order compelling responses as a precursor to an issuance of evidentiary, issue, or terminating sanctions. That the court and referee did not sign the stipulation does not negate the fact that this was the parties' agreement. In view of the parties' stipulation, the referee and the court did not err in treating the stipulation as the order required by sections 2030 and 2031.”]
Meat Dept.Inc.v. Keeney (1991), ordered not published 282 Cal.Rptr 67, 230 Cal.App.3d 1482
Waicis v. Superior Court (1990), 226 Cal.App.3d 283 [expert witness excluded as sanction for noncooperation in scheduling deposition in violation of court order]
Do It Urself Moving & Storage Inc. v. Brown, Leifer Slatkin & Berns (1992), 7 Cal.App.4th 27 at p. 35 [Court of Appeal overlooked statutory requirement and relied on case law arising under prior discovery law that did not contain statutory prerequsite of court order violation; RD is based on futility of court order; case should be limited to its unique facts]
Pate v. Channel Lumber Co. (1997), 51 Cal.App.4th 1447, 1456 [ Evidence preclusion sanctions imposed at trial without any prior motion or order when party assured opponent on 4 occasions ( 3 req. to prod.) that all requested documents had been produced. Motion would be of no value]
McGinty v. Superior Court (1994), 26 Cal.App.4th 204 [Sanctions imposed against plaintiff for violation by expert of out of state protective order reversed as excessive but the propriety of sanctions was not discussed.]
Order violated need not be correct to form basis of sanctions
Marriage of Nicklas (1989), 211 Cal.App.3d 28[Parties could not contend that the order they violated which resulted in the imposition of monetary sanctions erroneously overruled objections based on privilege; only lack of jurisdiction, unconstitutionality or other defect rendering the original order void can be defense to sanctions. Erroneous order should be challenged by writ or complied.]
Continuous, wilful, obstructive conduct or egregious interference
Doppes v. Bentley Motors, Inc. (2009) , 174 Cal.App.4th 967 No. G038734
Liberty Mutual Fire Ins. Co. v. LCL Administrators, Inc. (2008) , 163 Cal.App.4th 1093 Terminating and monetary sanctions for “vacuous, meaningless responses” to “straightforward interrogatories [form interrogatory 15.1 and similar special interrogatories], asking for witnesses, documents and evidence to support... affirmative defenses and cross-claims” and the subsequent default judgment were affirmed. Prior granting of motions to compel and sanctions, unfulfilled promises to comply with discovery, discovery compliance after motions filed, failures to meet and confer, lack of knowledge at corporate depositions,
The trial court was reversed for failing to impose terminating sanctions and instructed to enter the default and default judgment based on numerous and repeated discovery abuses.
"In this case, we make the extraordinary, yet justified, determination that the trial court abused its discretion by failing to impose terminating sanctions against defendant for misuse of the discovery process. The record demonstrates defendant engaged in repeated and egregious violations of the discovery laws that not only impaired plaintiff's rights, but threatened the integrity of the judicial process."
"... Bentley persistently misused the discovery process, withheld documents, and violated four discovery orders or directives from the discovery referee."
"...once it was learned during trial that Bentley still had failed miserably to comply with discovery orders and directives, we hold the trial court had to impose terminating sanctions. Each degree of sanctions had failed. The trial court and discovery referee had been remarkably moderate in dealing with Bentley, ultimately imposing only a form of issue sanction after repeated violations of discovery orders that would have justified terminating sanctions. Yet, during the middle of trial, it was learned that Bentley still had not complied with discovery orders and directives, had been irresponsible at best in preventing destruction of e-mails, had not fully permitted data mining of e-mails as previously ordered, and had failed to produce documents it should have produced months earlier. Bentley's discovery abuses were "willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules." (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280.) Terminating sanctions against Bentley were imperative."
“LCL finally claims that the trial court improperly considered past conduct that had previously been sanctioned. According to this argument, the only issue before the trial court was the severity of LCL's current transgressions; past discovery abuses have no place in deciding whether to impose terminating sanctions. The claim has no merit.”
"The trial court was not being punitive--it was exercising its broad authority to levy the ultimate sanction when prior efforts yielded no results. ***Here, LCL persisted in its pattern of failure or refusal to give meaningful responses to discovery. The trial court was not required to allow LCL to continue its stalling tactics indefinitely.”
The Court held a showing of prejudice is not required for terminating sanctions and that it existed since the responding party failed to show an intelligible basis for its position. It held that “wilfulness” was required but that wilfulness was shown by “worthless” and “evasive” responses, a failure to meet and confer, obfuscation and game playing. Intentional concealment is not required.
Mileikowsky v. Tenet Healthsystem (2005),128 Cal.App.4th 262, 26 Cal.Rptr.3d 831 [Monetary and terminating sanctions upheld based on a "pattern of promises and stipulations for the production of discovery responses that are unfulfilled" involving"basic information on damage claims[ ] and contention interrogatories that are fundamental to respondents' ability to prepare a defense." Numerous motions to compel and monetary sanctions had been granted; five motions for terminating sanctions had been made and counsel and the party had been expressly warned of terminating sanctions on the third motion.]McGinty v. Superior Court (1994), 26 Cal.App.4th 204, at p. 212 [Punishment to deter violation of foreign jurisdiction's court order not a justification for sanctions; party & counsel innocent; no harm; violation of court order re: disclosure of documents that were discoverable in pending action.]
Wilson v. Jefferson (1985), 163 Cal.App.3d 952,958 [Despite such conduct and lack of opposition or appearance to oppose sanctions, terminating sanction was found excessive and set aside.]
Johnson v. Pratt & Whitney Canada Inc. (1994), 28 Cal.App.4th 613 [series of evasive, delaying, avoidance tactics plus lost documents etc prevented plaintiff from presenting case and resulted in evidence preclusion sanction that resulted in summary judgment]
Steven M. Garber & Assoc. v. Eskandarian (2007) , 150 Cal.App.4th 813 [2d Dist., Div.8. Apr. 24, 2007] Opinion modified and certified for partial publication. Terminating sanctions for not complying with order compelling further responses. Form and special interrogatories and production requests were served on multiple defendants who failed to object on time and then served multiple late objections. The trial court ordered further responses and awarded sanctions against the parties and counsel. When further responses were not filed, terminating sanctions were granted. The appellate court affirmed stating “Given that appellants themselves had brought on the situation that the court had to resolve on January 26, 2005, the trial court could do nothing other than what it did do, which was to grant the motion for terminating sanctions and to offer appellants a chance to set that order aside.”
Reedy v. Bussell (2007), 148 Cal.App.4th 1272, 56 Cal.Rptr.3d 216 Terminating sanctions affirmed stating “Based upon the record before us, we can only wonder what took it so long.” On two other, matters the sanctions entering specific dollar judgments were reversed since specific damages had not been alleged. It was suggested that only the issue of damages need be tried and that liability could be established by a more limited sanction order.
“Appellants' contention that a statement of damages should have been filed before the default was taken is without merit. A statement of damages is required only in cases involving personal injuries or wrongful death. (Code Civ. Proc., § 525.11.)”
Lesser sanction not a prerequisite under prior law
Vallbona v.Springer (1996), 43 Cal.App.4th 1525, at page 1544 [documents requested 5 months prior to trial; informal response, production and representation no others existed; deposition 10 days before trial elicited testimony had not looked; unable to locate since robbery and docs may have been stolen; discovery sanctions requested at trial; lack of earlier motion was not a waiver; futiel to require court order as prerequisite to issuing evidentiary sanctions]
Scherrer v. Plaza Marina Comm'l Corp. 16 Cal.App.2d 520, 524. [No appearance at two noticed depositions and no explanation of why party didn't appear. "Were we to hold that an attorney and his client can ]blantantly excuse therir failure to appear at two deposition hearings merely because the dates fixed interfered with vacation plans or other business, we would set a precedent which could seriously impair the orderly administration of justice in our already overburdened trial courts."]
Housing Authority v. Gomez (1972) 26 Cal.App.3d 366. [Failure to appear at court ordered deposition.]
Frates v. Treder (1967) 249 Cal.App.2d 199.
Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250. (Monetary sanctions imposed first followed by dismissal.)
Richards v. Miller (1980 LA App. Dept.) 106 Cal.App.3d Supp. 13, 17 fn. 4. [express finding that the refusal to give discovery resulted in prejudice to the moving party]
CONDITIONAL SANCTIONS IMPROPER
Sole Energy Co. v. Hodges (2005), 128 Cal.App.4th 199
Duggan v. Moss (1979) 98 Cal.App.3d 735. [Violation of court order must be found at the time the sanction is imposed; improper to anticipate violation of court order and impose sanction in advance if there is a violation and ex parte motion was improper. Order of dismissal if answers to interrogatories are not served by specified date exceeds jurisdiction. Court had not found failure to answer was wilful.]
Midwife v. Bernal (1988), 203 Cal.App.3d 57 [trial court order to dismiss unless evidence produced and sanctions paid by pro per plaintiff; need to make finding when sanctions imposed; excessive sanction ]
A&M Records v. Heilman (1977) 75 Cal.App.3d 554.(Order precluding introduction of documents that are not produced on a future date approved.)
Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427.(Order to produce expert for deposition, otherwise precluded from calling at trial.)
Alliance Bank v. Murray (1984), 161 Cal.App.3d 1, at p. 6 [striking of answer for wilful failure to attend 2 depositions aff'd; "Thus we rule that the portion of the court's May 20, 1983, minute order conditionally authorizing respondent to bring an ex parte application on two days' written notice and conditionally ordering an award of additional attorney's fees is expressly violative of the statutory notice and motion requirements of Code of Civil Procedure section 2034, subdivision (d), and of the constitutional due process notice requirements of the federal and state Constitutions, and is therefore invalid for being in excess of the court's jurisdiction. (See Duggan v. Moss (1979) 98 Cal.App.3d 735, 741, 743" However, the party appear and participated and waived the objection]
Cf. Newsom v. City of Oakland (1974) 37 Cal.App.3d 1050, 1055.(May be proper if party clearly has ability to comply. Trial court allowed plaintiff to choose between answering a question or withdrawing claim for lost earnings.)
Note: motion for sanctions for failure to provide discovery may be made on its own right without a motion to compel the underlying discovery
Tucker v. Pacific Bell Mobile Services (2010),186 Cal.App.4th 1548 [monetary sanctions can be awarded for failure to answer questions at deposition even though no motion to compel or order to answer has been made. Slip Opinion Page 13]
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390 [full response without objections does not deprive the court of jurisdiction to hear motion to compel and for sanctions]
Notice C.C.P. §2023.040 [former 2023(c)]
Bluumenthal v. Superior Court (1980), 103 Cal..App.3d 317 [due process requires notice of sanction sought and person liable]
London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 [Court suggests party opposing motion must give notice of request for sanctions, though it was not an issue in the case. Query: does the statute itself satisfy due process by mandating sanctions? Would a formal notice be required on merely a request in opposing papers?]
Mattco Forge Inc. v. Arthur Young & Co.(1990), 223 Cal.App.3d 1429 [motion seeking monetary sanctions for failure to meet and confer, granted by trial court based on 128.5 and 2023 and upheld on appeal under 2031since it specified the relief requested as " monetary sanctions" and provided notice and an opportunity to be heard]
Corralejo v. Quiroga (1984), 152 Cal.App.3d 871 (1984), [notice for 128.5 sanctions against attorney required to satisfy due process; "monetary sanctions" sufficed]
Alliance Bank v. Murry(1984), 161 Cal.App.3d 1. [court cannot authorize improper notice but appearance and opposition on merits is a waiver and consent]
Trail v. Cornwell,(1984), 161 Cal.App.3d 477[dismissal rev'd as excessive sanction; written noticed motion required]Presentation to Court: timing
London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 (3d Dist.4/19/04) A motion for monetary sanctions can be brought after a motion to compel discovery and the motion is not subject to the 45 day limit though it must be “timely”.
See also Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152 [sanction motion filed after verdict].Declaration to support basis & amount
C.C.P. § 2023.040
Jane Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1440. Law & Motion determined by declaration unless good cause shown for taking testimony. Defendant's declaration established its own lack of substantial justification. “Based on its own declaration and its reliance upon a patently inapt federal regulation, the superior court could reasonably conclude that U.S. Swimming had made excessive redactions without "substantial justification." “The record does not establish that, under the circumstances of this case, the court abused its discretion in refusing to hold an in camera document inspection for the purpose of deciding whether a monetary sanction was appropriate or in imposing a monetary sanction without conducting an in camera inspection.”
Marriage of Niklas(1089), 211 Cal.App.3d 28 [cursory description of services provides inadequate basis; evidence must be sufficient to support finding of reasonable amount]
Nazemi v. Tseng (1992), 5 Cal.App.4th 1633, 1642 [Knowledge and experience of trial judge sufficient basis for determination of attorney's fee award; declaration, testimony or other direct evidence not required; nondiscovery ]
London v. Dri-Honing Corp. (2004), 117 Cal.App.4th 999 ["In Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 262, the appellate court held that the trial court’s finding as to reasonable expenses was justified since the opposing party failed to offer contrary evidence. That is the case here. Dri-Honing claims London’s itemization of 5.5 hours was an unreasonable driving time for one hearing, but it failed to offer a counterdeclaration supporting this claim."]
Justification of Issue/ Evidence/Terminating
Not mooted by subsequent responsesConsider purpose and object of discovery in formulating
Sanction should achieve the same benefit as discovery might have
Not mooted by voluntary dismissal
JOINDER IN MOTION by non-propounder who has relied on discovery and suffered from another's non-compliance
Parker, v. Wolters Kluwer United States (2007), 149 Cal.App.4th 285, Abuse of discretion to award sanctions in favor of non-propounding parties when they were not justified by a showing of prejudice. Parties seeking sanctions have the burden to show prejudice. The court noted and discussed a seeming inconsistency in decisions relating to sanctions in favor of non-propounding parties.Contra: Townsend v. Superior Court (EMC Mortgage Co.) (1998) 61 Cal.App.4th 1431 , 72 Cal.Rptr.2d 333 [failure to meet and confer at deposition resulting in appellate court vacating an award of sanction by the trial court. The court also concluded: "we conclude that parties who are not the discovery proponents, but simply join in a motion requesting discovery sanctions, are not entitled to be awarded sanctions."]
See Village Nuseries L.P v. Greenbaum (2002), 101 Cal.App.4th 26.46 re impropriety of joinder in summary judgment motion]
Trail v. Cornwell (1984)161 Cal.App.3d 477, fn.4. ["Appellant contends respondents may not seek sanctions based on noncompliance with discovery requests of parties other than respondents. We disagree. A party who does not seek discovery may seek sanctions based on an opponent's improper responses to another party's discovery requests. (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 905 [190 Cal.Rptr. 593]."]
Calvert Fire Ins. Co. v. Cropper (1983), 141 Cal.App.3d 901, 905 ["Appellant next argues that Lange, who was not a party to the original request for discovery, is not entitled to the benefit of sanctions for noncompliance. There is no case authority on point, but a holding in appellant's favor would unduly restrict the statutory language and would foster needless filings of discovery pleadings in court dockets that are already overburdened....On the face of subdivisions (b) and (d), there is no limitation of the potential beneficiaries of the sanction. Those subdivisions authorize the court to dismiss the "action or proceeding" or "any" part thereof. The plain implication is that an opposing party who did not initiate the discovery may benefit from the sanction without even requesting relief.]
Midwife v. Bernal (1988),203 Cal.App.3d 57, fn.3. ["Midwife also challenges the award of sanctions to the Bernals on the ground that the Bernals did not notice the deposition and therefore lacked standing to seek sanctions for Midwife's nonappearance. Midwife's argument is meritless."]
Jacuzzi v. Jacuzzi Bros. (1966) 243 Cal.App.2d 1.(Court power to vacate sanctions on a motion for reconsideration.)
Relief from default due to attorney fault
Lang v. Hochman (2000), 77 Cal.App.4th 1225, 1251 [mandatory relief from default can be granted only where the facts show solely attorney fault; 473 protects only the innocent client; no relief for culpable client who participates in conduct leading to default; dismissal aff'd]
Todd v. Thrifty Corp. (1995), 34 Cal.App.4th 986[Trial CT rev'd. For granting relief based on attorney fault declaration; "counsel's mistakes, if any, did not cause the dismissal...."]
Abuse of discretion or relief deniedTodd v. Thrifty Corp. (1995)[Trial CT rev'd. For granting relief based on attorney fault declaration; "counsel's mistakes, if any, did not cause the dismissal...." CT AP acknowledged that 473 relief was mandatory in the sanction context in the case of attorney fault but not if the attorney is simply covering up for the client or the attorney mistake was not the actual cause ]
Carroll v. Abbott Laboratories [hearing granted] [ Tr.Ct rev'd for granting C.C.P. § 473 relief for not producing documents or answering interrogatories No justification for relief if repeated derelictions and weak excuses.]
Doppes v. Bentley Motors, Inc. (2009) , 174 Cal.App.4th 967 No. G038734
The trial court was reversed for failing to impose terminating sanctions and instructed to enter the default and default judgment based on numerous and repeated discovery abuses. During trial when it was discovered that further non-compliance with discovery orders had occurred and that abuses were worse than previously believed, the motion for terminating sanctions was denied in favor of lesser sanctions.For discovery abuses without violation of court order
Saxena v. Goffney (2008), 159 Cal.App.4th 316 , p.330-4 [error to exclude witness at trial for evasive or incomplete answer when there had been no motion or court order “...sanctions for misuse of the discovery process are limited "[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of [the Civil Discovery Act]." (§ 2023.030.) Thus, the sanctions available to remedy evasive or incomplete responses to interrogatories are limited to those contained in Chapter 13 of the Civil Discovery Act (§ 2030.010 et seq.).”]
Olmstead v. Arthur J. Gallagher & Co. (2004), 32 Cal.4th 804, at p. 808 Post trial request for sanctions denied by the trial court. The trial court determined 128.5 sanctions were not available. The appellate court reversed but the Supreme Court agreed with the trial court. "... plaintiffs submitted a false "no" answer to a defense interrogatory inquiring whether they were pursuing any other lawsuit related to the accident. Defendants urged this conduct was sanctionable under section 2023, which prohibits "misuse[ ] of the discovery process" by, among other things, "[m]aking an evasive response to discovery." (Id., subd. (a)(6); see also id., subd. (b)(1).) The trial court granted reconsideration but denied sanctions on the merits. The court reasoned that an unequivocal, though false, answer is not "evasive" within the meaning of section 2023.
Defendants appealed from the order denying sanctions. They urged that section 2023 authorized sanctions for plaintiffs' false interrogatory response, that sanctions for plaintiffs' other deceptive conduct was available under both section 128.5 and 128.7, and that the trial court had inherent authority to award sanctions in any event.****The Court of Appeal also determined that section 2023 authorizes sanctions for discovery "misuses" beyond those, such as "evasive" responses, that are specifically enumerated in the statute. The Court of Appeal concluded that a "blatantly false" interrogatory response, even if not technically "evasive," must qualify as a sanctionable "misuse" of the discovery process. Plaintiffs sought review on both the section 128.5 and section2023 issues. We granted review, but we limited the issues to whether " section 128.5 authorizes sanctions.
Sherman v. Kinetic Concepts (1998), 67 Cal.App.4th 1152 [Post trial sanctions pursuant to C.C.P. §§2023 for failure to produce documents; new trial, cost and attorney's fees for trial, trial court instructed to consider additional sanctions short of default]
Pate v. Channel Lumber Co.(1997), 51 Cal.App.4th 1447, 1456 [Evidence preclusion for not producing requested documents after assuring opponent that all requested documents were produced in 5 boxes]
Campain v. Safeway Stores (1972), 29 Cal.App.3d 362 [entitled to new trial when new element of damages presented contrary to interrogatory answers. See Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 672 suggesting a continuance and reopening of discovery should have been granted by the trial judge rather than preventing the proponent of the new issue from proceeding on that evidence and issue]]
Thoren v. Johnson & Washer (1972), 29 Cal.App.3d 270 [ Trial court exclusion of critical testimony for ommission of name in interrogatory answers resulted in nonsuit; judgment aff'd; no abuse of discretion. NB Saxena v. Goffney at p. 333 limited exclusion remedy to responses that are “willfully false, i.e., intentionally not true;” the burden of proof is on the moving party. The court distinguished this abuse from those listed in the Discovery Act for which a remedy is specified and limited by statute. See also Biles v. Exxon Mobil Corp (2004), 124 Cal. App. 4th 1315 approving of Thoren as limited ]
In limine motion
Mardirossian & Associates, Inc. v. Ersoff (2007) , 153 Cal.App.4th 257 . The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.'" (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669 (Kelly).) ***
His deposition testimony is not inconsistent with his trial testimony on that point; but, even if it were, the trial court properly concluded such inconsistency was to be evaluated by the trier of fact. (Kelly, supra, 49 Cal.App.4th at p. 673.) As our Division Four colleagues recognized in Kelly, although a party may be precluded from introducing evidence contrary to its response in a request for admission (Code Civ. Proc., § 2033.410, subd. (a)), deposition testimony does not serve the same purpose as a request for admission, which is aimed primarily "at setting at rest a triable issue so that it will not have to be tried." (Kelly, at p. 673.) Accordingly, "[i]t is a misuse of a motion in limine" to attempt to compel a witness or a party to conform his or her trial testimony to his or her deposition testimony. Trial testimony may be impeached by inconsistent deposition testimony, but absent an abuse of the discovery process, such testimony should not be precluded. (Id. at p. 672.)
Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659 , 56 Cal.Rptr.2d 803. Tr.Ct rev'd for “ misuse and abuse of motions in limine which resulted in denial of due process.” Plaintiff was confused as to which elevator had malfunctioned. After identifying the smaller one, he was denied discovery on larger one. Defendant argued that “because plaintiffs testified that the accident occurred on the small elevator, evidence relating to the large elevator was irrelevant and should be excluded.” A motion in limine was granted limiting plaintiff's evidence of malfunction to the smaller one. The court discussed the nature and purpose of motions in limine and stated at p.675:
“The mere fact that plaintiff Kelly initially identified the small elevator as the one on which she thought she was riding does not render evidence relating to the large elevator irrelevant. Her deposition testimony also included statements indicating she had witnessed malfunctions in both elevators. She later declared her lack of certainty as to which elevator had allegedly caused her injuries. The jury may find that plaintiffs were in fact riding on the large elevator. We conclude that Amtech's request to exclude evidence other than that related to the small elevator was completely without foundation and that the trial court abused its discretion in granting the motion.”
For violation of prior court order
Zellerino v. Brown (1991), 235 Cal.App.3d 1097. [expert preclusion for failing to comply with protective order compelling disclosure of experts resulting in nonsuit ]
ALTERNATIVES
TO
DISCOVERY SANCTIONS
Contempt
C.C.P. § 128.5 .7INHERENT AUTHORITYOnly parties can seek sanctions
Capotosto v. Collins(1991),235 Cal.App.3d 1439 [Sanctions in favor of attorney who had not substituted into case rev'd; no sanctions against or in favor of attorney NOT of record]
Cedars-Sinai Medical Ctr. v.
Superior Court (1998), 18 Cal.4th 1, 12 [Independent
cause of action for tort rejected in favor of resoving matter in
pending litigation. The Court's language suggests a liberal or
braod apprach to remedying discovery abuses within the pending
litigation. Dictum: "Destroying evidence in response to a
discovery request after litigation has commenced would surely be
a misuse of discovery within the meaning of section 2023, as
would such destruction in anticipation of a discovery request."
]
R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999), 75 Cal.App.4th 486 [ Complaint was based on a fraudulent document that had been created on a computer that had been the subject of discovery manipulations. Ultimately the case was dismissed and affirmed on appeal. Although some language suggests the dismissal was based on discovery sanctions and even on spoliation, it appears that both the trial and appellate courts were concerned with the conduct amounting to a fraud on the court. ]
'As the trial court
judge pointed out:
"All courts are at the mercy of litigants and their advocates
. . . in the often difficult search for truth. The ability to
discover fraud in the process, particularly sophisticated
computer fraud, is greatly limited. Thus, the imposition of
strong sanctions is one of the very few ways of deterring such
activity in the future. This Court intends such a message
here."'
“Here, the judge's utilization of the dismissal sanction was not only appropriate on the facts of this case, but was a realistic measure undertaken to protect the integrity of the pending litigation and the Superior Court, as well as to send an appropriate message to those who would so abuse the courts of the Commonwealth. To limit, as Munshani suggests, punishment for such conduct to repayment of the costs of uncovering the fraud could actually encourage similar fraud in other high stakes cases. A devious litigant might embark on a scheme to engage in complex electronic fraud calculating the possibility that, even if caught, he or she [*16] could simply pay the bill and proceed with the litigation. The judge here imposed a sanction that allowed zero tolerance for sophisticated computer fraud and evidence tampering. That sanction was within the judge's discretion.”
