Issue: Under the California Civil Procedure Code, what is required before terminating sanctions will be ordered for failure to make discovery?
| Area of Law: | Litigation & Procedure |
| Keywords: | Terminating sanctions; Failure to make discovery; Protect the interests of the party denied discovery, |
| Jurisdiction: | California |
| Cited Cases: | 171 Cal. App. 3d 877 |
| Cited Statutes: | Cal. Civ. P. Code § 2023 |
| Date: | 07/01/2001 |
In general, a sanction under Cal. Civ. P. Code § 2023 should not exceed what is required to protect the interests of the party denied discovery, and court has discretion to decide what it should be.
The penalty 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. Where a motion to compel has been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.
The sanction of dismissal . . . is ordinarily a drastic measure which should be employed with caution. . . . The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit.
Deyo v. Kilbourne (2d Dist. 1978) 84 Cal. App. 3d 771, 793. See also R.S. Creative, Inc. v. Creative Cotton, Inc. (2d Dist. 1999), 75 Cal. App. 4th 486 (terminating sanction should be used sparingly).
Stated another way, unless the discovery violation places the requesting party in a worse position than it would have been if the evidence had been produced, a sanction is not warranted. In Puritan Ins. Co. v. Superior Court (3d Dist. 1985) 171 Cal. App. 3d 877, the plaintiff’s […]