Motion for terminating sanctions in California

A motion for terminating sanctions in California is the topic of this blog post.

This blog post will discuss obtaining an order of the Court, pursuant to Code of Civil Procedure section 2030.290 for failure to respond to several orders of the Court to respond to an interrogatory or interrogatories although the basic principles that are discussed apply to any other authorized method of written discovery.

A terminating sanction is an extremely harsh remedy that can result in the Court striking the answer of a defendant, or the complaint of a plaintiff and entering a default and even a default judgment against them.

Because filing a motion for terminating sanctions is an extremely harsh remedy they should only be filed when you can show a persistent failure of a party to comply with a court order or orders to respond to discovery.

Pursuant to Code of Civil Procedure §§ 2023.010(d), (g), and (i), “failing to respond or to submit to authorized methods of discovery”, “disobeying a court order to provide discovery”, and “failing to confer” are all misuses of the discovery process.

California Code of Civil Procedure § 2030.290(c) states, in relevant part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (c) …If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.”

Courts including the United States Supreme Court and a California Court of Appeal have stated in published decisions that failing to respond to discovery creates a presumption that the resisting party is admitting a lack of merit in their claim or defense.

Terminating sanctions are appropriate when a chronic pattern of delay or evasiveness by the defaulting party is egregious enough to warrant denial of a trial on the merits.  Electronic Funds Solutions, LLC v Murphy (2005) 134 Cal. App. 4th 1161, 1183 (in that case the Court ruled that terminating sanctions were appropriate when the defendants’ “persistent failure to comply with the court’s discovery orders resulted in a discovery stay and continuance of the trial”).

And terminating sanctions have been deemed proper if the authority of the court cannot be vindicated by the use of a less severe sanction.

In fact, in one recent California Court of Appeal published decision an abuse of discretion was found where the trial court had not ordered any terminating sanctions during the trial even though it was aware that defendant had still not complied with previous discovery orders.  In Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th  967, 994, the Court ruled that the trial court abused its discretion by not ordering terminating sanctions during trial when it learned that defendant still had failed to comply with discovery orders and had failed to produce documents that should have been produced months earlier.

Although terminating sanctions are an extremely harsh remedy, in the right situation where the other party has demonstrated a persistent failure to comply with a court order to respond to discovery, they are extremely useful.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion for terminating sanctions is appropriate in your case.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Supplemental discovery requests in California

Supplemental discovery requests in California are the topic of this blog post.

There are two supplemental discovery requests that can be used in California. They are supplemental interrogatories and supplemental requests for production of documents.

The supplemental interrogatory is a very useful litigation tool.  The reason that a supplemental interrogatory is so useful is that Code of Civil Procedure § 2030.060(g) states in pertinent part that an interrogatory may not be made a continuing one so as to impose on the party responding to it a duty to supplement an answer to it that was initially correct and complete with later acquired information.

Unless a party has been served with a supplemental interrogatory they are not required to supplement their responses to any interrogatories even if they acquire information after their responses to interrogatories.

However a party must supplement their responses to interrogatories if they have been served with a supplemental interrogatory under the provisions of Code of Civil Procedure § 2030.070.

A supplemental interrogatory may be served twice before the initial setting of a trial date, and once more before the discovery cut-off date, meaning that the supplemental interrogatory may be served up to three times.  A party may also seek leave of Court for permission to serve additional supplemental interrogatories.

With the drastically reduced court funding in California resulting in trial dates being set farther in the future than before, the use of supplemental discovery requests is a very useful tool in California litigation.

The use of a supplemental interrogatory is a great tool for “pinning down” the opposing party’s responses.   If the opposing party does not disclose any later acquired information in their responses to the supplemental interrogatory the propounding party can file a motion with the court to exclude the introduction of the information on the grounds that it was not previously disclosed.

A supplemental interrogatory is particularly useful when the responding party has previously responded to interrogatories with a “boilerplate” response such as “response made on advice of counsel or information and belief”, “discovery is continuing”, etc.  If the responding party does not respond adequately to the supplemental interrogatory they risk not being allowed to introduce any information in support of their claims or defenses due to their failure to supplement their responses.

The other supplemental discovery request that is authorized in California is a supplemental request for production and inspection of documents under Code of Civil Procedure § 2031.050.

As with a supplemental interrogatory, a supplemental request for production and inspection of documents may be served twice before the initial setting of a trial date, and once more before the discovery cut-off date.  Thus a supplemental request for production and inspection of documents may be served up to three times.  A party may seek leave of court to serve additional supplemental requests for production and inspection of documents.

As with a supplemental interrogatory, the use of a supplemental request for production and inspection of documents is a great tool for “pinning down” the opposing party’s responses.  If the opposing party does not disclose any later acquired documents in their responses to the supplemental request for production and inspection of documents then the propounding party can file a motion with the court to exclude the introduction of the documents on the grounds that it was not previously disclosed.

Many parties respond to requests for production and inspection of documents with a “boilerplate” response such as “discovery is continuing”, etc.  These situations are where the supplemental request can be very useful.  If the responding party does not respond adequately to the supplemental request for production and inspection of documents they risk not being allowed to introduce any documents in support of their claims or defenses due to their failure to supplement their responses.

An experienced litigation attorney can evaluate your situation and determine whether serving supplemental discovery requests is appropriate, or if you should file a motion for leave of court to serve additional supplemental discovery requests.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

Demand for a bill of particulars in California

A demand for a bill of particulars in California is the topic of this blog post.

The law in California states that it is not necessary for a plaintiff who sues on an account to include the items of any account in their complaint.  California law also states that if the defendant serves a written demand on the plaintiff they are required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof.

The demand for a bill of particulars procedure dates back to the days of early common law when plaintiffs who sued on a common count gave no specifics in their pleading as to the nature of the claim such as whether it was contract, quasi-contract, etc.  For this reason, courts allowed a demand for bill of particulars to enable defendant to discover what was being claimed and to prepare for trial.

This procedure, known as a bill of particulars forces the plaintiff to itemize the total sum upon which the complaint is based.

The demand for a bill of particulars must be in writing, and the bill of particulars must be delivered to the requesting party within 10 (ten) days if personally served, fifteen (15) days if served by mail.  And if the original complaint or cross-complaint was verified the bill of particulars must also be verified.

Law authorizing a demand for a bill of particulars in California.

Code of Civil Procedure § 454 states that,

“It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof.  The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.

If the pleading is verified the account must be verified by the affidavit of the party to the effect that he believes it to be true; or if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney has his office or from some cause unable to make the affidavit, by the affidavit of the agent or attorney.”

Advantages of a demand for a bill of particulars in California.

A demand for a bill of particulars enables any defendant who has been sued on an account such as common counts or certain actions in contract or quasi-contract to force plaintiff to itemize the account on which the complaint is based.  A demand for a bill of particulars is very useful in collection cases as it forces the plaintiff to itemize each and every charge on which the alleged balance is based.

Demanding a bill of particulars in California is not used as often nowadays.  However it remains a powerful tool for the defendant in an action on an account.  See Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that the demand was made and complied with.)

If used in the appropriate situations, a demand for a bill of particulars can be an excellent tool for forcing the plaintiff to provide all of the documentation supporting their claim.

A demand for a bill of particulars in California is very powerful in situations where the plaintiff is an assignee of a finance or credit card company and may not have all of the documentation needed to serve a timely response.

Considering the fact that the current economy has led to an explosion resulting in the repeated sale and transfer of delinquent accounts, failing to utilize the demand for the bill of particulars is a critical error.

If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must file a noticed motion with the court to amend the bill of particulars just as he or she would to amend a pleading.  Many assignees of finance or credit card companies will respond by simply providing the last statement, a response which is clearly defective, and in those situations a defendant may file a noticed motion for a further bill of particulars.

If a plaintiff fails to respond to the demand for a bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion.  In fact some Judges may allow this request to be made by a motion in limine at trial.

The bill of particulars furnished by the plaintiff is treated as an amplification of the pleadings and it is for this reason that it has the effect of a pleading.  At the trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars.  No additional items can be shown.  See Baroni v. Musick (1934) 3 Cal App. 2d 419, 421.

Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts which include actions for:  (1) money had and received;  (2) money lent or paid;  (3) services and material; (4) goods sold and delivered; and (5) quantum meruit.

However even though Code of Civil Procedure § 454 authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

An account stated is a new agreement by the parties which supersedes the original contract and account.  Jones v. Wilton, (1938) 10 Cal. 2d 493, 498 .

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account.  Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well in that,

(1) it is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions;

(2) responses to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible).  On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars, and,

(3) since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act.  Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.

The big disadvantage is that a bill of particulars is only available in actions on an account.  For that reason it is not an alternative to depositions and interrogatories in certain cases.

Experienced civil litigation attorney in Corona,  California.

An experienced litigation attorney can evaluate your situation and determine if serving a demand for a bill of particulars is appropriate given the unique circumstances of your case.  Contact attorney Nathan Mubasher for a  consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Enforcing a deposition subpoena in California

Enforcing a deposition subpoena in California is the topic of this blog post.

A deposition subpoena in California is authorized by code of Civil Procedure section 2020.410 which states in pertinent part that prior to trial, a party may serve a deposition subpoena for the production of business records on a nonparty.

If the nonparty fails to comply with the deposition subpoena a motion to enforce the deposition subpoena may be filed.

This blog post will discuss situations where a nonparty has been served with a deposition subpoena yet has failed to make any appearance at the deposition or produce the requested business records.

A California Court of Appeal has stated in a published decision that the provisions of Code of Civil Procedure section 2025 clearly apply to deposition subpoenas. Thus the motion to enforce the deposition subpoena in California must comply with the various requirements found in section 2025.

Law authorizing a motion to enforce a deposition subpoena in California.

Code of Civil Procedure section 2025.480 states in pertinent part that,

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”

However before filing any motion seeking to enforce a deposition subpoena in California the moving party must make a sufficient showing to the court that they have made a reasonable effort to meet and confer to resolve the issue before filing their motion and the motion must include a meet and confer declaration detailing the efforts to resolve the issue informally.

The moving party may also seek sanctions for their expenses incurred in connection with both the refusal to comply with the deposition subpoena and the preparation and filing of the motion to compel. Those sanctions can include attorney’s fees if the moving party is represented by an attorney.

The law in California is well settled that the scope of permissible discovery is very broad and any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Any doubts regarding relevance are generally resolved in favor of allowing the discovery.

In fact a California Court of Appeal recently ruled in a published case that although the trial court has discretion in deciding whether to grant or deny a discovery motion it is obligated to construe the discovery statutes liberally in favor of disclosure, and that the broad scope of discovery includes the discovery of information from a nonparty.

The United States Supreme Court has stated that a fundamental principle of the common law is that “`”the public … has a right to every man’s evidence.” Trammel v. United States (1980) 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186).

Under California law, if good cause has been shown for the production of a writing in a legal proceeding, no person has a right to refuse production of the writing in the absence of a statutory privilege permitting such refusal. “Except as otherwise provided by statute: [¶] . . . [¶] (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.” Evidence Code section 911 subdivision (b).

Civil litigation attorney in Riverside County, California.

An experienced litigation attorney can evaluate your situation and determine if the circumstances of your case require enforcing a deposition subpoena in California.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Notice to appear at a trial or hearing and produce documents in California

A notice to appear at a trial or hearing and produce documents in California is the topic of this blog post.

A notice to appear at a trial or hearing and produce documents in California is technically known as a notice in lieu of subpoena duces tecum as the notice can be used instead of a subpoena duces tecum.

Law authorizing a notice to appear at a trial or hearing and produce documents in California.

A notice to appear at a trial or hearing and produce documents in California is authorized by the provisions of Code of Civil Procedure § 1987(b) and (c) and can only be used on a party to the action or proceeding, or someone who is an officer, director, or managing agent of any such party.  One of the main advantages of using the notice to appear is that service may be made by mail in most cases, instead of personal service as is required with a standard subpoena.

Code of Civil Procedure § 1987 states in pertinent part that,

“(b) In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.

(c) If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents, electronically stored information, or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.

Subject to this subdivision, the notice provided in this subdivision shall have the same effect as is provided in subdivision (b) as to a notice for attendance of that party or person.”

Advantages of a notice to appear at a trial or hearing and produce documents in California.

But the best advantage of all to serving a notice to appear at a trial or hearing and produce documents in California is the fact that a party who has failed to request certain essential or critical documents during the discovery phase of the litigation process, and the existence of those documents is known, and the documents can be clearly identified, that party can prepare and serve the notice on the other party to compel them to appear and produce the requested documents at the trial or hearing.

If only the attendance of the person as a witness is required, then service of the notice to appear at a trial or hearing and produce documents in California must be made personally at least ten (10) calendar days before the trial or hearing, or fifteen (15) calendar days before the trial or hearing if service is made by mail under the provisions of Code of Civil Procedure § 1987(b).

Service should be made on the party or their attorney if they have one

If production of documents is required, then service of the notice to appear at a trial or hearing and produce documents in California must be made personally at least twenty (20) calendar days before the trial or hearing, or twenty five (25) calendar days before the trial or hearing if service is made by mail under the provisions of Code of Civil Procedure § 1987(c). Service should be made on the party or their attorney if they have one. The notice should state the exact materials or things desired with as much specificity a possible, as well as a statement that the person has them in their possession, or under their control.

The giving of the notice to appear at a trial or hearing and produce documents in California shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.  See Code of Civil Procedure § 1987(b).

Civil litigation attorney in Southern California.

An experienced litigation attorney can evaluate your situation and determine if serving a notice to appear at a trial or hearing in California is appropriate given the unique circumstances of your case.   Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.