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Family Law Discovery and Contempt: Sanctions

How to File a Motion for Sanctions

What is a Motion for Sanctions? 

The court has authority to issue sanctions (penalties) for "discovery misuse" against an offending party for abuse of the discovery process or for failure to comply with valid discovery requests. CCP §2023.010 includes a listing of "misuses of the discovery process." Note that misuses not listed may also be considered by the court for sanctions.

Types of Sanctions

There are different kinds of sanctions that can be imposed on the other party and/or their attorney. The trial court has broad discretion to impose any sanction authorized by the statutes governing the method of discovery at issue. Depending on the nature of the discovery misuse, sanctions that may be available include: 

  1. Monetary sanctions (reasonable expenses, including attorney fees; punitive damages are not permitted)
  2. Non-monetary sanctions (issued only if a party fails to obey a court order compelling discovery)
  • Issue sanction - An order that designated facts be "taken as established," or deemed true, against the party guilty of discovery misuse;
  • Evidence sanction - Prohibiting the guilty party from introducing designated matters in evidence.
  • Terminating sanction - Striking pleadings, dismissing offending party's action, staying further proceedings until the court order is obeyed, or rendering default judgment against offending party.
  • Contempt sanction - Used for willful disobedience of a discovery order (see CCP §2023.030). 

Noticed Motion is Required to Seek Sanctions

Discovery sanctions may be ordered only after notice to the affected party and an opportunity for a hearing. No "ex parte" orders seeking discovery sanctions are allowed (CCP §2023.030 - §2023.040).

Filing and Serving the Motion 

The Notice of Motion to be filed with the trial court must:

  • Identify every person, party, and attorney against whom the sanction is sought,
  • Be supported by a memorandum of points and authorities, and 
  • Be accompanied by a supporting declaration.

If you are submitting a declaration in support of a motion for monetary discovery sanctions, you must set forth the facts showing exactly what fees and costs have been incurred (CCP §2023.040).

To file and serve the motion for sanctions:

  1. Contact the San Diego Superior Court Family Law Business Office to schedule a date and time for the motion for sanctions hearing. 
  2. All paperwork must be filed with the Court and served on the other party at least 16 court days before the hearing (CCP §1005(b)). If serving by mail in California, the time for service is increased by five calendar days (CCP §1005(b)).
  3. You cannot serve the documents, they must be served by someone who is not a party to the action and over 18 years of age. The person performing the service must sign a proof of service form stating what they served, who it was served on, and the date of the service. The person performing the service must sign a proof of service form stating what they served, who it was served on, and the date of the service. Proof of personal service forms can be found here, and proof of service by mail forms can be found here. For more information about service, see San Diego Law Library's guide entitled Service of Notice and Other Papers. 
  4. The Proof of Service must be filed no later than five days before the time appointed for the hearing (Cal. Rule of Court 3.1300(c)).
  5. Keep a copy of all documents filed with the court for your own records.

Sample Notice of Motion and Motion 

See California Forms of Pleading and Practice (call number KFC1010.A65 C3), Vol. 16, Sections 192.50 to 192.53

Sample Points and Authorities

See California Points and Authorities (call number KFC1010 .B4), Ch. 82. Your Points and Authorities must correspond to the particular type of sanctions being requested.

Responding to a Motion for Sanctions

At the Law Library you can find resources to assist you with responding to a Motion for Sanctions related to discovery, including Opposing California Civil Motions: Model Opposition Briefs, which is available in print and in Westlaw. Chapter 6 of that title includes sample briefs for responding to:

  • Motion for Sanctions for Failure of Deponent to Appear or Produce
  • Motion for Sanctions for Spoilation of Evidence
  • Motion for Sanctions for Failure to Obey a Court Order.