Discovery

Plaintiff sued defendant for a sexual assault which occurred during a business trip to Florida in 2022.  Plaintiff was a Colorado resident but was CEO of a California corporation in which defendant's venture capital firm had made a large investment.  The decision holds that defendant was not subject to specific jurisdiction in California because all the events regarding the sexual… Read More

Monetary sanctions for discovery abuse may include attorney fees and costs that the prevailing party incurred in the meet-and-confer sessions (or any mediation or other settlement effort) undertaken before the motion to compel was filed but may not include fees or costs incurred during a mediation session held after the motion was fully briefed and awaiting oral argument. Read More

A lawyer who serves discovery responses that are abuses of discovery because they contain only meritless objections rather than substantive responses to written discovery may be liable for monetary discovery sanctions even though he is no longer counsel of record for the answering party when the sanctions motion is filed.  This attorney didn't help his cause any by his incivility… Read More

Defendant denied requests for admission that certain hospital records were authentic and business records.  This decision holds that the trial court erred in failing to award plaintiff the cost of proving the records were business records under CCP 2033.420. The trial court erred in denying those costs on the ground that plaintiff did not prove the records were business records… Read More

Under CCP 2033.410, a request for admissions that is not timely answered may be "deemed admitted" by court order, but the deemed admission is binding only on the party that made the admission.  An agent's deemed admissions (for failure to timely answer requests for admission) do not bind the principal codefendant, even when the basis for the action against the… Read More

A statement of compliance with a demand for production of documents does not need to identify which documents relate to specific items of the demand.  Instead, a general statement that the party will produce the requested documents suffices.  (CCP 2031.210.)  However, under CCP 2031.280(a), as recently amended, when the documents are produced, the producing party must  identify to which specific… Read More

CCP 2023.030(f) provides that "absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system."  This decision holds that this provision does not shield… Read More

A trial court must consider a party's ability to pay before ordering that party to pay all or a portion of the fees of an expert appointed by the court under Evid. Code 730 or Fam. Code 3111 or 3112. Read More

Following Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th  388, this decision holds that MICRA's one-year from discovery limitations period applies to a claim that plaintiff was injured by an automobile accident caused by the EMT's negligent driving of the ambulance taking plaintiff to a hospital.  The negligence occurred in the rendering of services for which a provider is… Read More

While in the hospital, plaintiff was assaulted by a psychiatric patient at the same hospital.  Plaintiff sued the hospital claiming it failed to take reasonable measures to protect plaintiff from the assault which it should have anticipated from information available to the hospital's psychiatrist.  This decision holds that the trial court erroneously concluded that plaintiff was not entitled to discovery… Read More

Under CCP 2023.030(f), a party cannot be sanctioned for destruction of ESI if the evidence was lost before the party that possessed or controlled it became  objectively aware the evidence was relevant to reasonably foreseeable future litigation, meaning the future litigation was probable or likely to arise from an event, and not merely when litigation was a remote possibility.  Here,… Read More

This decision holds that when a consumer who is not a party to the action objects to disclosure of his personal records pursuant to a party's subpoena on a third-party witness under CCP 1985.3(g), the subpoenaing party must move to enforce the subpoena over the consumer's objection within 20 days after service of the objection, as provided in CCP 1985.3(g). … Read More

Both parts of the Discovery Act's sanctions chapter, CCP 2023.010 lists the types of discovery abuses the Legislature sought to preclude, and CCP 2023.030 lists the types of sanctions that can be awarded if authorized by a later section governing a specific discovery device, but neither of these general sections, in itself or combined with each other, authorizes imposition of… Read More

When a responding party serves both objections and answers to interrogatories, the 45-day deadline for filing a motion to compel (even if directed only against the objections) does not begin to run until the responding party serves a verification of the answers.  However, service of only a notice of motion to compel before the deadline is insufficient.  To be timely,… Read More

Under CCP 1987.2, a party that moves to quash a subpoena for that party's personal identifying information may recover attorney fees upon demonstrating (i) he prevailed on the motion to quash, (ii) the underlying action arises from the party's exercise of free speech rights on the Internet, and (iii) the plaintiff in that proceeding did not make a prima facie… Read More

The district court abused its discretion in excluding testimony from defendant's sole trial witness and in imposing monetary sanctions for defendants' purported failure to properly identify the areas of testimony of the witness--who had been identified in the defendant's initial disclosures.  Even if the initial disclosures showed only that the witness would testify about the underlying lawsuit for which the… Read More

Under 28 U. S. C. §1782, a district courts may order testimony or the production of evidence “for use in a proceeding in a foreign or international tribunal.”  The statute reaches only governmental or intergovernmental adjudicative bodies, not private arbitral panels. Read More

In response to a contention interrogatory about whether plaintiff, the borrower, contended that notice of foreclosure had not been properly served, plaintiff answered "unsure."  This decision holds that plaintiff is bound by that deliberately ambiguous answer and cannot, in opposition to a summary judgment motion, suddenly claim that she now is certain she never received notice of the foreclosure sale. … Read More

Employer's arbitration clause was unenforceable because it was unconscionable.  The clause was a mandatory, non-negotiable requirement of employment.  It was procedurally unconscionable because it was given to plaintiff only in English, which he cannot read, and without a schedule of the arbitration fees he could be charged.  It was substantively unconscionable because it allowed the arbitrator to shift attorney fees… Read More

Cal. Const., art. I, sec. 28(b)(5) grants crime victims the right to “refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.”  This decision holds that this provision which was… Read More