Issue: Under the California Civil Procedure Code, is willfulness required before a party will be sanctioned for failure to make discovery?
| Area of Law: | Litigation & Procedure |
| Keywords: | Sanctions; Failure to make discovery; Willfulness |
| Jurisdiction: | California |
| Cited Cases: | 61 Cal. 2d 698; 75 Cal. App. 4th 486; 84 Cal. App. 3d 771; 43 Cal. App. 4th 1525 |
| Cited Statutes: | California Civil Procedure Code § 2023; Cal. Civ. P. Code § 2031(l) |
| Date: | 07/01/2001 |
A sanction under California Civil Procedure Code § 2023 has two absolute prerequisites: (1) a failure to comply with a discovery order, and (2) the failure was willful. R.S. Creative, Inc. v. Creative Cotton, Inc. (2d Dist. 1999), 75 Cal. App. 4th 486, 496. When the moving party seeks a terminating sanction, there must be an order compelling discovery. See Cal. Civ. P. Code § 2031(l); Lund v. Superior Court (1964) 61 Cal. 2d 698, 712
If there is an order compelling discovery, the court must make an specific finding of a willful failure.
Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply. A willful 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 non-compliance, is sufficient to invoke a penalty.
Deyo v. Kilbourne (2d Dist. 1978) 84 Cal. App. 3d 771, 787-88 (emphasis added).
Willfulness has been found in a number of cases. For example, in Vallbona v. Springer (4th Dist. 1996) 43 Cal. App. 4th 1525, the defendant refused to produce documents, including his application to the Food and Drug Agency for approval to perform a surgical technique. Id. at 1541-42. The plaintiffs needed court intervention to take the defendant’s deposition, and later […]