The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210.) “California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process,’ including terminating sanctions.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

“[T]erminating sanctions are to be used sparingly because of the drastic effect of their application. Thus, under the statutory scheme, trial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191.)

Legal Standard

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. (Code of Civ. Proc., § 2025.450(h); Code of Civ. Proc., § 2030.290(c); Code of Civ. Proc., § 2031.300(c).) An order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance. (Kravitz v. Super. Ct. (2001) 91 Cal.App.4th 1015, 1021.)

“The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: the conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1224.) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

“Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, 223 Cal. App. 4th at 390.)

Burden of Proof

The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (Puritan Ins. Co. v. Super. Ct. (1985) 171 Cal.App.3d 877, 884.)

However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.) “[A]bsent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.” (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.)

Types of Terminating Sanctions

The court may impose a terminating sanction by 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.
4. An order rendering a judgment by default against that party.

(Code of Civ. Proc., § 2023.030(d).)

“[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) In extreme cases, however, terminating sanctions as a first measure are authorized. (New Albertsons, Inc. v. Super. Ct. (2008) 168 Cal.App.4th 1403, 1434.)

“[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Super. Ct. (1986) 180 Cal.App.3d 701, 707.) Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

Procedure

“To the extent authorized by the chapter governing any particular discovery method... the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose... [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Code of Civ. Proc., § 2023.030.)