The court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose terminating sanctions against anyone engaging in conduct that is a misuse of the discovery process. Code Civ. Proc., § 2023.030.

Misuses of the discovery process include, but are not limited to, the following:

1. Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.
2. Using a discovery method in a manner that does not comply with its specified procedures.
3. Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.
4. Failing to respond or to submit to an authorized method of discovery.
5. Making, without substantial justification, an unmeritorious objection to discovery.
6. Making an evasive response to discovery.
7. Disobeying a court order to provide discovery.
8. Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
9. Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

Code Civ. Proc., § 2023.010.

The court may impose terminating sanctions by issuing one of the following orders:

1. an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process;
2. an order staying further proceedings by that party until an order for discovery is obeyed;
3. an order dismissing the action, or any part of the action, of that party; or
4. an order rendering a judgment by default against that party.

Code Civ. Proc., § 2023.030.

Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992. In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances. Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.

The court should begin with lesser sanctions to determine their effectiveness before issuing terminating sanctions. Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.

Before any sanctions may be imposed the Court must make an express finding that there has been a willful failure of the party to comply with the Court’s discovery order. Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118. Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.

The party who failed to comply with the Court’s discovery order has the burden of showing that the failure was not willful. Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250.

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. Code Civ. Proc., § 2023.040.