After discovery (obtaining tax returns), I have discovered that while P is demanding over $400,000 in damages from me for conduct that allegedly "destroyed" his law practice, turns out he was actually LOSING money in his practice prior to his claims, and actually reported HIGHER income to the IRS during the relevant period. His claims are now demonstrably patently fraudulent. I am wondering if it makes any sense to go straight to a motion for terminating sanctions. ("where a party engages in “deliberate” and “egregious” misconduct that “renders any remedy short of dismissal inadequate to preserve the fairness of the trial,” the trial court may impose terminating sanctions against that party. Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 764.")
Thoughts?
No. I think you might be getting mixed up in your various sanction motions.
California Code of Civil Procedure § 128.7(b) provides that the filing of a pleading certifies that, to the attorney or unrepresented party’s “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances;” the pleading is not being presented “primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;” the claims, defenses and other legal contentions therein are “warranted;” and the allegations and other factual contentions “have evidentiary support.” If these standards are violated, the court can impose an appropriate sanction sufficient to deter future misconduct, including a monetary sanction.
Sanctions under Code of Civil Procedure §128.7 are intended to deter abusive conduct. There are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. (Guillemin v. Stein (2002) 104 Cal.App.4th 156.) A motion under CCP 128.7 usually does not concern discovery abuse, because the Civil Discovery Act has its own sanctions provisions.
In contrast, a party may seek terminating sanctions against the opposing party for failure to comply with the Court’s prior discovery order. Typically, if the court grants a motion to compel discovery or a deposition and the party fails to comply with the court's order, the next step is to seek more serious sanctions such as issues sanctions, evidentiary sanctions, or terminating sanctions. Generally speaking, courts are advised to try some “lesser sanction” before imposing terminating sanctions. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796–797.) A discovery order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613. )
