By Patricia M. Lucas and Gary Nadler
The objective of this article and accompanying self-assessment test is to provide bench officers and lawyers with an overview of sanctions available in California civil discovery. By reading the article and taking the accompanying self-study test, readers will learn about the purpose of sanctions for discovery violations, the nature and sources of a court's power to impose sanctions, types of sanctions available, and what constitutes "substantial justification" barring sanctions.
Purpose of Sanctions
Discovery sanctions are not meant "'to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits,' ... but to prevent abuse of the discovery process and correct the problem presented." Parker v. Wolters Kluwer United States Inc., 149 Cal. App. 4th 285 (2007) (citations omitted). Monetary sanctions encourage "voluntary compliance with discovery procedures by assessing the costs of compelling compliance against the defaulting party." Argaman v. Ratan, 73 Cal. App. 4th 1173 (1999).
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. See, e.g., Rail Services of America v. State Compensation Insurance Fund, 110 Cal. App. 4th 323 (2003). In Do v. Superior Court, 109 Cal. App. 4th 1210 (2003), a party seeking a deposition was represented by a pro bono attorney. When the deponent failed to appear, the court awarded attorney fees. The importance of sanctions as a deterrent effect was addressed, and fees were awarded even though the pro bono attorney never intended to bill for services.
Nature and Authority for Sanctions
Code of Civil Procedure Section 2023.010 sets forth a non-exhaustive list of what constitutes "[m]isuses of the discovery process." This section lists "(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. (b) Using a discovery method in a manner that does not comply with its specified procedures. (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. (f) Making an evasive response to discovery. (g) Disobeying a court order to provide discovery. (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (i) Failing to [meet and] confer ... [to] attempt to resolve informally any dispute concerning discovery."
CCP Section 2023.030 provides, "To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose ... sanctions against anyone engaging in conduct that is a misuse of the discovery process." Appellate courts have recognized the authority of trial courts to impose sanctions due to abuses of the discovery process even when the sanctions were not expressly provided by any specific discovery statute. See, e.g., Vallbona v. Springer, 43 Cal. App. 4th 1525 (1996).
Under CCP Section 177.5, "A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification."
The California Rules of Court are an additional source of power to impose sanctions in civil cases. Rule 2.30(b) provides, "In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules." Trans-Action Commercial Investors Ltd. v. Jelinek, 60 Cal. App. 4th 352 (1997), held this rule was invalid to the extent that it permitted sanctions inconsistent with statute. Sino Century Development Ltd. v. Farley, 211 Cal. App. 4th 688 (2012), confirmed the validity of the rule for sanctions in situations not inconsistent with statutes, but determined "reasonable monetary sanctions" do not include attorney fees.
Of course, before sanctions may be ordered as a result of discovery abuse, the affected party must have notice. Such sanctions may not be ordered at an ex parte hearing. Sole Energy Co. v. Hodges, 128 Cal. App. 4th 199 (2005). Also, under this opinion, the mere insertion of the warning, "failure to appear & produce will result in sanctions" in the orders granting motions to compel is ineffective to provide the necessary notice for imposing a discovery sanction.
Types of Sanctions
CCP Section 2023.030 lists the following as sanctions available to a court for a discovery violation: (a) a monetary sanction; (b) "an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process"; (c) "an evidence sanction by an order prohibiting any party from ... introducing designated matters in evidence"; (d) a terminating sanction; and (f) a contempt sanction.
The most common sanction for discovery violations is imposition of monetary sanctions. Authorization for most discovery motions include language similar to the following, "The court shall impose a monetary sanction under Chapter 7 (commencing with [CCP Section] 2023.010) against any party, person, or attorney who [violates a discovery statute] 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." See, e.g., CCP Sections 2025.480(j) (motion to compel an answer or production); 2030.290(c) (motion to compel a response to interrogatories).
Sanctions may not be awarded for future expenses to be incurred as a result of discovery misuse; the individual seeking sanctions must have already become liable for expenses incurred before those expenses may be awarded as sanctions. Tucker v. Pacific Bell Mobile Services, 186 Cal. App. 4th 1548 (2010).
The imposition of sanctions other than monetary sanctions is limited. The court must first utilize less severe alternatives before imposing issue, evidence or terminating sanctions. See Rail Services of America, 110 Cal. App. 4th 323. The sanction imposed "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." McArthur v. Bockman, 208 Cal. App. 3d 1076 (1989) (citation omitted). In Karlsson v. Ford Motor Company, 140 Cal. App. 4th 1202 (2006), the court upheld evidentiary and issue sanctions based on a pattern of abusive discovery conduct, holding that a violation of a discovery order is not a prerequisite to issue and evidentiary sanctions when the offending party has engaged in a pattern of willful discovery abuse.
"Substantial justification" is generally defined as being justified to a degree that could satisfy a reasonable person, or stated another way, that it has a reasonable basis both in law and fact. The burden for proving substantial justification for failing to comply with a discovery order is on the losing party claiming that it acted with substantial justification. Doe v. U.S. Swimming Inc., 200 Cal. App. 4th 1424 (2011).
Under U.S. Swimming, to be sufficient to bar imposing sanctions, the justification must be "well grounded in both law and fact." Also, there must be "'reasonable grounds to believe that objections, when made, were valid and that the opposition to the motion was justified'" Diepenbrock v. Brown, 208 Cal. App. 4th 743 (2012) (citation omitted). The party requesting sanctions must show that the opponent's objections were insubstantial, made for purposes of delay, harassment, or were otherwise unreasonable. Union Mut. Life Ins. Co. v. Superior Court, 80 Cal. App. 3d 1 (1978). Further, under Diepenbrock, litigating novel issues of law, even if ultimately determined in the opponent's favor, may be substantially justified and thus not a basis for sanctions.
The court in Clement v. Alegre, 177 Cal. App. 4th 1277 (2009), had "no difficulty" determining that objections to discovery were meant to delay discovery, to require the opposing parties to incur potentially significant costs to redraft the interrogatories in question, and "to generally obstruct the self-executing process of discovery." The Court of Appeal held the conduct subject to sanction need not be willful; the intent is not relevant in determining whether sanctions are justifiably imposed: "'There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.' ... '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.'"
With regard to the court's order, the court is not required to make a specific finding that a motion or opposition was without substantial justification; this is implied in the order awarding sanctions. However, the court must make a finding that the exception of substantial justification exists. Parker, 149 Cal. App. 4th 285.
Patricia M. Lucas is a judge of the Santa Clara County Superior Court.
Gary Nadler is a judge of the Sonoma County Superior Court.