After a party has been successful in obtaining an Order Compelling a party to compel discovery responses and that party fails to comply with the Court order, the party who has the Order to Compel may request that Court strike that parties “Complaint” and/or “Answer” and request a judgment, default and sanctions against that party. This motion is commonly know as the “Doomsday Motion.”

THE COURT HAS DISCRETION UNDER CCP §2023 TO ISSUE SANCTIONS; STRIKE DEFENDANT’S RESPONSIVE PLEADINGS; AND ENTER A DEFAULT

The Court has discretion to award sanctions against defendant, under CCP §2023.030, which states that it is an misuse of discovery to disobey a court order to provide discovery. CCP §2023.030(d) grants the Court discretion to apply sanctions above and beyond a motion to compel and monetary sanctions, which as stated supra, have already been granted. CCP §2023.030 (d) states that court may grant the following “terminating sanction[s]” (also known as “Doomsday Sanctions”):

IN ORDER TO GRANT TERMINATING SANCTIONS DUE TO DISOBEDIENCE OF A COURT ORDER, THAT DISOBEDIENCE MUST BE FOUND TO BE WILLFUL

While the court has the discretion to order sanctions pursuant to CCP §§2023.030(d), the court must also determine that the disobedience of the court order was willful. R.S. Creative, Inc. v. Creative Cotton, LTD., 89 Cal.Rptr.2d 353, 360 (C.A. 2ndDist 1999) (citing Vallbona v. Stringer, 43 Cal.App.4th 1525, 1545 (1996) (citations omitted)).

In R.S. Creative, Inc. there were two plaintiffs; the principal and the corporation, who were actually one in the same. The defendants sought and were awarded terminating sanctions against plaintiffs for several abuses of discovery including forgery, improper cessation of a deposition and intentional destruction of evidence. Id at pp. 355-359. The court found, without question, that plaintiffs’ actions were willful, as well as an abuse of discovery, and thus the trial court did not abuse its discretion when it granted the terminating sanctions in favor of defendants.

WHEN A PARTY HAS FAILED TO RESPOND TO Request to Produce Documents and Things

Pursuant to California Code of Civil Procedure §2031.210, §2031.220, and §2031.250 (formerly CCP §2031) the party answering Request to Produce Documents and Things must serve original copies with an original verification to the propounding party. The service of the responses must be done via U.S. mail unless, pursuant to CCP §1013(e), there is a written or verified agreement to accept service via facsimile.

Responses which do not comply with the CCP are not deemed responses and the Court must not recognize them as so. Failure to serve original documents is in direct violation with CCP 2030.210 et seq. and must be deemed a failure to properly serve. Failure to provide a verification of the responses led the court, in Appleton v. Superior Court of Sacramento County, 206 CA 3d 632, 636 (Cal.App. 3rd Dist 1988), to deem unverified responses to be as if no response was sent or received. Finally, facsimile service without agreement to receive service by facsimile renders the facsimile received unacceptable service.

THE COURTS HAVE GRANTED MOTIONS TO STRIKE AND ENTERED DEFAULTS IN LESS EGREGIOUS AND SIMILAR CASES

The court in Collison & Kaplan v. Hartunian, 26 Cal.Rptr.2d 786 (2nd Dist. 1994) upheld a trial court’s order that struck the entirety of defendant’s answers, and the ensuing default. The paper trail in Collison & Kaplan was quite lengthy. Plaintiff served several discovery devices on defendant. Defendant was either late, delinquent or served incomplete or insufficient answers and objected to the questions actually answered. The defendant in Collison & Kaplan only answered a handful of plaintiff’s discovery requests, but was late, incomplete or evasive in the provided answers. The court ordered, pursuant to a motion to compel, monetary sanctions and gave defendant a timeline to follow to answer discovery. Defendant missed the timeline and filed incomplete answers, or answers with objections. In fact, defendant’s answers, post-court order were from the perspective of defendant’s corporation, a non-party. Id at 1615. All of the “gamesmanship” that defendant engaged in, that dragged out discovery for eight months, persuaded the court that the only tact that defendant would understand was to order all responsive pleadings struck, and granted plaintiff a judgment based upon proof. Id at pp. 1616-1617.

In the appeal the court upheld the motion to strike and the ensuing default judgment. The court first stated that no less drastic measure is required by law, unless the path taken was beyond the court’s discretion based upon the facts of the case. Id at p. 1620. Second, the court explained terminating sanctions are used when no tact will persuade the offending party to respond properly, and to protect the interests of the public and the judicial system itself. Id at p. 1620. In fact, the appellants were sanctioned again for making the appeal without merit, arguing only semantics. Id at pp.1620-1622.

In Lang v. Hochman, 92 Cal Rptr2d 322 (CA 2d Dist 2000), the discovery controversy centered on evasive and incomplete answers to Request for Production of Documents (RPD). The defendants in Lang answered much of the RPD but failed to answer several categories of documents. Defendants failed to answer despite the fact that plaintiffs and the court gave defendants multiple chances to properly respond. Id at pp.1230-1232. In time a referee was brought in to report to the court on the discovery progress. After two referee reports and a levy of sanctions, the court granted terminating sanctions, striking large sections of defendants’ responses. Id at pp. 1235-1237. Defendants continued to evade and properly respond to the discovery requests per court order, despite the fact that a prior accountant of one of defendant corporations signed a declaration stating that he knew from personal experience that many of the documents sought did exist, and were not produced. After the fifth and final referee report the court vacated, and re-issued the terminating sanctions striking all of defendants’ responses, thereby effectuating a default in addition. Id at pp.1240-1243.

The defendants in Kaplan & Collison and Lang were said to have intentionally, or at minimum, willfully avoided and ignored a court order by giving evasive, incomplete answers or failing to give answers pursuant to the relevant CCP sections.

A MOTION TO STRIKE AND/OR ENTER A DEFAULT MUST ENCOMPASS ALL ISSUES OF THE COMPLAINT

An order granting a motion to strike and entry of default is the ultimate sanction. Therefore, the court’s decision must be that no other sanction will protect the necessary interests of the public and the moving party nor convince the offending party to properly comply with the discovery as to all issues. When a court grants a terminating sanction without the proper grounds, it creates the possibility for reversal on appeal.

In Caryl Richards v. Superior Court, 188 CA 2d 300 (1961) the appellate court reversed a dismissal stemming from a failure to respond to a single interrogatory. The case was a particularly complicated products liability case with many issues and claims. One interrogatory was insufficiently answered, and the trial court granted the terminating sanction after the defendant’s refusal to reveal the requested formula on trade secret grounds. Id at p. 302. The court granted the plaintiffs’ motion to strike and entered a default in their favor on the basis of the refusal to answer one interrogatory. Id at pp. 302-302. Upon a writ of mandamus the appeal was heard, and the judgment reversed. The appellate court reversed the decision on abuse of discretion grounds. The court found that the trial court abused its discretion based upon the fact that the single interrogatory was not the crux of the case, but only a single issue among many. Id at 306-307. Therefore, a terminating sanction upon the entire case would be inappropriate, where a lesser sanction would allow the case to continue on the other issues, thereby not denying a full adjudication or justice to the parties involved.

~Rachelle Le Blanc

Law Offices of Vincent W. Davis & Associates

http://www.vincentwdavis.com/


Plaintiff served form interrogatories, request for production of documents, and special interrogatories as opposed to the case at bar. Plaintiffs in the instant matter only served form interrogatories and request for production of documents on defendants.

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