Issue: Under the California Civil Procedure Code, what is required before a party will be sanctioned for failure to make discovery?
| Area of Law: | Litigation & Procedure |
| Keywords: | Sanctions; Failure to make discovery |
| Jurisdiction: | California |
| Cited Cases: | 57 Cal. App. 4th 1447; 61 Cal. 2d 698; 75 Cal. App. 4th 486; 222 Cal. App. 3d 1579; 40 Cal. App. 4th 608; 7 Cal. App. 4th 27; 67 Cal. App. 4th 1152 |
| Cited Statutes: | Cal. Civ. P. Code § 2031(l); California Civil Procedure Code § 2023; Cal. Civ. P. Code Ann. § 2023(b), § 2023(a)(4); Cal. Civ. P. Code Ann. § 2031(l); Cal. Civ. P. Code § 2023(b), 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
A discovery order is generally required for the consideration of sanctions under Section 2023(b). “To the extent authorized by the section governing any particular discovery method . . . the court . . . may impose” a sanction for misuse of the discovery process. Cal. Civ. P. Code Ann. § 2023(b) (West 1998) (emphasis added). This rule is based on principles of due process. See Newland v. Superior Court (2d Dist. 1995) 40 Cal. App. 4th 608, 614 (“Constitutional due process ‘imposes limitations on the power of courts, even in aid of their own valid processes, to order discovery sanctions that deprive a party of his opportunity for a hearing on the merits of the claim.'”) (citations omitted).
Section 2023(a) lists the kinds of conduct deemed to be “misuse.” Only one, “[f]ailing to submit to an authorized method of discovery,” § 2023(a)(4), is arguably applicable to the videotapes. The statute governing production of documents and things clearly requires an order compelling production before sanctions heavier than a […]