Sample Motion for Terminating Sanctions by LegalDocsPro

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									 1   Any Party or Attorney
     Any Street
 2   Any Town, CA 55555

 3   714-555-5555

 4   Attorney or Party

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                                     Superior Court of the State of California
 9                                    For the County of _________________

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11   Any Plaintiff,                                  )   Case No.
                                                     )
                                                         NOTICE OF MOTION AND MOTION FOR
12                    Plaintiff,                     )
                                                         TERMINATING SANCTIONS, MEMORANDUM
                                                     )
                                                         OF POINTS AND AUTHORITIES,
              vs.                                    )
13                                                       DECLARATION OF __________, EXHIBITS
                                                     )
     Any Defendant,                                  )   DATE:
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                                                     )   TIME:
                      Defendant.                     )   DEPT:
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                                                     )
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                                                     )
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              TO: _____________________________ AND THEIR ATTORNEY OF RECORD HEREIN:
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              PLEASE TAKE NOTICE that on ____________, 2012, at _______.m. or as soon thereafter
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     as the matter may be heard, in Department ________ of the above-entitled court, located at
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22   __________________________, ___________________________will and hereby does move this

23   Court for terminating sanctions by an order striking defendant’s answer and rendering judgment by
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     default against defendant ___________________based on defendant’s willful failure to comply with
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     this Court’s numerous orders compelling responses to plaintiff’s interrogatory on defendant.
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                This motion is made on the grounds that, per Code of Civil Procedure § 2030.290(c),
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28   defendant has failed to respond to two court orders compelling response to an interrogatory.


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                         NOTICE OF MOTION AND MOTION FOR TERMINATING SANCTIONS
 1             Defendant has demonstrated a consistent persistent and willful noncompliance in plaintiff’s

 2   discovery efforts, engaging in repeated and egregious violations of the discovery laws that impair
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     plaintiff’s rights and threaten the integrity of the judicial process.
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             This motion is based on this notice, the pleadings, records, and files in this action; the
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     attached memorandum of points and authorities, the supporting declaration of _____________ and
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 7   exhibits attached thereto, and any further oral and/or documentary evidence presented at the hearing.

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 9   Dated________________                   _______________________________________________
                                             ANY ATTORNEY OR PARTY
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                        NOTICE OF MOTION AND MOTION FOR TERMINATING SANCTIONS
 1                          MEMORANDUM OF POINTS AND AUTHORITIES

 2                                                       I.
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                                        PRELIMINARY STATEMENT
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            Plaintiff filed a complaint alleging defamation of character against defendant in
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     _____________. Plaintiff seeks terminating sanctions against defendant for his willful, fourteen
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 7   month long abuse of the discovery process and utter failure to participate in plaintiff’s discovery

 8   efforts and advancement of the case. To date, Defendant has ignored a subpoena, plaintiff’s first
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     interrogatory on defendant, and four court orders compelling compliance with the two discovery
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     documents, and utterly ignores plaintiff’s attempts to meet and confer.
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                                                        II.
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13                                           LEGAL ARGUMENT

14          A) TERMINATING SANCTIONS ARE AVAILABLE AND PROPER FOR FAILURE
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     TO OBEY COURT ORDERS COMPELLING RESPONSE TO INTERROGATORY.
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            Defendant has failed to respond to Plaintiff’s properly served interrogatories and has also
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     disobeyed this Court’s two orders that he do so, and fails to participate in meet and confer efforts
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19   seeking to resolve this issue.

20          Pursuant to C.C.P. §§ 2023.010(d), (g), and (i), “failing to respond or to submit to authorized
21   methods of discovery”, “disobeying a court order to provide discovery”, and “failing to confer” are
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     all misuses of the discovery process.
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            California Code of Civil Procedure§ 2030.290(c) states, in relevant part,
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               “If a party to whom interrogatories are directed fails to serve a timely response, the

26   following rules apply: (c) …If a party then fails to obey an order compelling answers, the court may
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                       NOTICE OF MOTION AND MOTION FOR TERMINATING SANCTIONS
 1   make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or

 2   a terminating sanction. (emphasis added).
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            Dismissal for failure to make discovery is justified by the presumption that the resisting party
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     is impliedly admitting lack of merit in a claim or defense. Hammond Packing Co. v Arkansas (1909)
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     212 US 322, 351, 53 L Ed 530, 29 S Ct 370, Kahn v. Kahn (1976) 68 Cal.App.3d 372, 382.
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 7          Terminating sanctions are appropriate when a chronic pattern of delay or evasiveness by the

 8   defaulting party is egregious enough to warrant denial of a trial on the merits. Electronic Funds
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     Solutions, LLC v Murphy (2005) 134 Cal. App. 4th 1161, 1183 (terminating sanctions appropriate
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     when defendants’ “persistent failure to comply with the court’s discovery orders resulted in a
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     discovery stay and continuance of the trial”).
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13          Defendant in this action has provided more than ample reason for the Court to exercise its
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     power to impose terminating sanctions. Plaintiff brings this motion for terminating sanctions because
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     previous orders have not been effective in inducing defendant to action. Given defendant’s refusal to
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     comply with fundamental tenants of civil discovery in the face of court orders, terminating sanctions
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18   are warranted and necessary to preserve the integrity and enforce the orders of this Court. See Rail

19   Services of Am. v. State Comp. Ins. Fund, (2003) 110 Cal. App 4th 323, 331 (stating that terminating
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     sanctions are proper to address non-compliance. “if the court’s authority cannot be vindicated
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     through the imposition of a less severe alternative”).
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23          Be sure to modify these paragraphs to suit your individual situation. Do NOT just

24   use the wording here unless it definitely applies to your particular situation.
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            B) CONTROLLING CASE LAW WITH SIMILAR FACT PATTERNS SUPPORTS
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     TERMINATING SANCTIONS.
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