Fourth District, Division 3 Reminds Us That Prior Motion to Compel Is No Precondition to Sanctions Request.
This next case is not so much remarkable for the result, but for reminders on what should be done by litigators when responding to discovery requests.
In Mallard v. Progressive Choice Ins. Co. (Kent), Case No. G042778 (4th Dist., Div. 3 Oct. 26, 2010) (unpublished), attorney was imposed with $1,090 in monetary sanctions for making an evasive RFA response on behalf of his client. Basically, attorney responded having no knowledge to respond to the request despite filing a verified complaint saying the request was indeed what happened. During the discovery hearing, attorney admitted he made a mistake, but the trial court was not persuaded because attorney did not try to correct the error during the meet and confer process. Attorney appealed the sanctions award.
Justice Fybel, on behalf of a 3-0 panel of the Fourth District, Division 3, affirmed.
Granting the motion to compel further responses was no abuse of discretion, much like the sanctions award. Trial judges have a range of penalties that they can impose for discovery abuses, especially making evasive responses to discovery under Code of Civil Procedure section 2023.030. In fact, an order upon a motion to compel further responses is not a necessary predicate to a sanctions motion under section 2023.030. (Tucker v. Pacific Bell Mobile Services, 186 Cal.App.4th 1548, 1561 (2010).) This case showed no misuse of sanctioning power, since the attorney did not even provide the factual basis for responding to the RFA as he did on behalf of the client.