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.

 

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.

Opposing a demurer in California

Opposing a demurer in California is the topic of this blog post.

This blog post will briefly discuss some common grounds for opposing a demurrer in California.  The same issues discussed in this blog post will also apply to opposing a demurrer to a cross-complaint or an answer as well.

Deadline for opposing a demurrer in California.

The opposition to a demurer in California should be filed and served at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005 unless the court has ordered otherwise.

Grounds for opposing a demurrer in California.

Careful review of the demurrer and any supporting documents is essential so that it can be determined what grounds for opposing the demurrer exist

One very common ground for opposing a demurrer in California is on the grounds that the demurrer relies on extrinsic evidence which cannot be considered in ruling on a demurrer unless the evidence is subject to judicial notice.  This means that no demurrer in California can be based on affidavits, declarations or any other matters that are outside the “four corners” of the pleading. A demurrer can only be used to challenge what lies on the face of the complaint, or what is subject to judicial notice.

Another common ground for opposing a demurrer in California is the fact that the law in California is well settled that only the legal sufficiency of the allegations is tested by the filing of a demurrer.  Other issues such as truth, the ability of plaintiff’s to prove their allegations or any alleged difficulty in making such proof cannot be considered in ruling on a demurrer.  The allegations of plaintiff must be accepted as true no matter how unlikely or improbable for the purposes of ruling on the demurrer.

It is not necessary that the cause of action be the one intended by plaintiff. The real test is whether the complaint states any valid claim entitling plaintiff to relief.  This means that a plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail.   But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.

Special demurrers for uncertainty are a disfavored ground for a demurrer and will only be sustained where the complaint is so bad that the defendant cannot determine what issues they must admit or deny, or what causes of action are directed against them.  And the alleged uncertainties must be specified with particularity.  The special demurrer must specify exactly how or why the pleading is uncertain, and where such uncertainty appears in the complaint by referring to the page and line numbers of the complaint.

Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent:

The California Supreme Court has stated that it is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that a plaintiff can state a good cause of action.

An experienced civil litigation attorney can evaluate your situation and determine which grounds exist for opposing a demurrer 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.

Discovery Methods Used in Litigation in California – Part 2 of 2

Discovery methods used in litigation in California are the topic of this blog post.

This blog post will discuss requests for production of documents and special interrogatories in California and is the second in a two part series that discusses the various discovery methods utilized in litigation in California.

The information in this blog post only applies to unlimited civil cases in which the amount demanded is more than $25,000.

Requests for Production of Documents:

Serving a request for production of documents is an excellent tool that allows any party to a lawsuit to obtain all documents that support the claims or defenses of the opposing party or parties so that they can be reviewed.

In addition to requesting production of documents a party can also demand production and inspection of documents and tangible things, as well as entering onto land for inspection and other purposes.

The rules governing requests for production of documents are found in Code of Civil Procedure § 2031.010, et seq.

The law in California states that a defendant may propound a request for production of documents at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first.  See Code of Civil Procedure § 2031.020.

Requests for production of documents have an important advantage over other discovery methods due to the fact that there is no numerical limit to the number of requests specified in California law. However a party served with excessive requests may seek leave of court to limit the number of requests.

Another advantage of requests for production of documents are that unlike special interrogatories and requests for admission there are no format or content restrictions whatsoever and no restrictions on any preface or instructions that may be included unlike special interrogatories and requests for admission.

The documents request should be limited to any and all documents that might contain relevant information that would assist the requesting party in evaluating the case, preparing for trial, or facilitating a settlement or that might reasonably lead to admissible evidence.

The California courts have ruled that the scope of discovery in California civil litigation is very broad. Any doubts are applied liberally in favor of discovery. And information is considered relevant if it could reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement.

The mere fact that a particular document might not be admissible does not prevent a party from requesting that document on the grounds that information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.

Requests for production and inspection of documents and tangible things are very useful in that they allow a party to review in detail all relevant documents and tangible things that support the opposing party’s claims or defenses.

Special Interrogatories:

Special interrogatories are written questions that are drafted based on a review of a particular case.

Serving special interrogatories is used to require an opposing party to state the facts, witnesses and documents on which their contention or contentions are based so they can be reviewed.  Depending on the responses to the first set of special interrogatories your attorney may draft and serve another set of special interrogatories.

The rules governing special interrogatories are found in Code of Civil Procedure § 2030.010, et seq.

The law in California states that a defendant may propound special interrogatories at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first. See Code of Civil Procedure § 2030.020.

There is a numerical limit of thirty five (35) on the number of special interrogatories.  However if a supporting declaration stating that any additional interrogatories are warranted due to the complexity of the case and other certain factors is attached, then any party may propound more additional special interrogatories. See Code of Civil Procedure §§ 2030.030 and 2030.050.

There are certain format restrictions on special interrogatories.  No special interrogatory may contain subparts, or a compound, conjunctive or disjunctive question. See Code of Civil Procedure § 2030.060.  This means that a special interrogatory cannot contain part a, b, c, etc., nor can it contain a question with more than one part, and it cannot contain the word “and” which is conjunctive, it also cannot contain the word “or” which is disjunctive. Although many special interrogatories do violate these format rules any party using such a format runs the risk of the opposing party objecting on those grounds.

Retaining an attorney that is experienced in litigation is essential as they will analyze the fact pattern of your particular case and will create special interrogatories designed to obtain information on the facts, witnesses and documents that would assist the requesting party in evaluating the case, preparing for trial, or facilitating a settlement or that might reasonably lead to admissible evidence.

Special interrogatories have an advantage over depositions due to the fact that deposition questions may not ask party deponent to state all facts, list all witnesses and identify all documents that support or pertain to particular contention in that party’s pleadings, although that information is discoverable when sought by written interrogatory.

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.

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