1Dear [FIRSTNAME], The topic of this issue of the newsletter is the filing of a motion for terminating sanctions in California.

The post will discuss obtaining an order of the Court, pursuant to Code of Civil Procedure 2030.290 for failure to respond to several orders of the Court to respond to an interrogatory or interrogatories, or any other authorized method of discovery. --------------Reminder: THE AUTHOR NOW SELLS COLLECTIONS OF SAMPLE LEGAL DOCUMENTS AT A HUGE DISCOUNT! VISIT THE WEBSITE BELOW FOR MORE INFORMATION. http://www.scribd.com/LegalDocsPro/documents --------------The author worked on a case back in 2011 where the defendant failed to serve any response at all to an interrogatory, despite being ordered to respond by the Court on at least two different occasions. The order requested was an order striking the answer of the defendant and entering a default again them. The order was granted, and as a result a huge default judgment in an amount well over $2,000,000.00 was entered against the defendant. Because terminating sanctions are a very harsh remedy they should only be filed when the moving party can show persistent failure of a party to comply with a court order 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 have ruled that failing to respond to discovery creates a presumption that the resisting party is admitting a lack of merit in their claim or defense. Dismissal for failure to respond to discovery is justified by the presumption that the resisting party is impliedly admitting lack of merit in a claim or defense. Hammond Packing Co. v Arkansas (1909) 212 US 322, 351; see also Kahn v. Kahn (1976) 68 Cal.App.3d 372, 382. 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 courts 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. Rail Services of Am. v. State Comp. Ins. Fund, (2003) 110 Cal. App 4th 323, 331 (in this particular the Court stating that terminating sanctions are proper to address non-compliance. if the courts authority cannot be vindicated through the imposition of a less severe alternative). In fact, in one recent California Court of Appeal case 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 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. Attorneys or prties in California who would like to view a portion of a sample motion for terminating sanctions sold by the author can use the link shown below. http://www.scribd.com/doc/81425726/Sample-Motion-for-Terminating-Sanctions If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm It would be greatly appreciated if you would visit the website at http://www.legaldocspro.net and give it a like with Google + if possible. Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995, and recently relocated to Asia. Copyright 2013 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is

unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.