Breaking Barriers to Justice
Step One: Hold Your Ground
Superior Court (2023) 93 Cal.App.5th 1348). If a party is not willing to verify or swear why no documents exist, then you’ve uncovered an inconsistency. File a motion to compel. Consider also serving an early demand for initial disclosures under Code of Civil Procedure §2016.090. This would require all parties in the action to disclose the names of persons likely to have discoverable information and all documents, ESI, and tangible items in their custody possession and control that are relevant to the subject matter of the action. If the responding party fails to include important documents like design, manufacturing, or safety information that would obviously be relevant, this can be used as supporting evidence of a pattern of discovery misconduct in a later motion to compel or for sanctions. This is not hyper technical, it is strategic. It forces the responding party to either own up to their evasive tactics or double down on their answer. If they double down, a motion to compel will likely be unsuccessful, but that is not the end. Pinning them to their answer lays the foundation for steps two and three.
Mandate compliance with the Civil Discovery Act. When a party claims no documents exist, Code of Civil Procedure §2031.230 requires: (1) an affirmation that a “diligent search and reasonable inquiry” was undertaken; (2) a specific explanation as to why they are unable to comply—is it because the requested item “never existed, has been destroyed, lost, misplaced, or stolen, or has never been or is no longer in the possession, custody or control of the responding party,” and; (3) a statement setting forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. If the responses do not comply with these requirements, send a meet and confer letter informing counsel that they are obligated to make a reasonable and good faith effort to obtain responsive information (Regency Health Services, Inc. v. Superior Ct. (1998) 64 Cal.App.4th 1496) and that “[a] party cannot plead ignorance to information which can be obtained from sources under his control” (Deyo v. Superior Court (1978) 84 Cal.App.3d 771, 782). If, after meeting and conferring, a party refuses to provide fully compliant responses that satisfy § 2031.230 (1)-(3) affirming the requisite search was undertaken, explaining why documents don’t exist, and identifying who may have responsive information, then file a motion to compel. Responses must also be verified. (Code Civ. Proc. § 2031.250; Pollock v.
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Consumer Attorneys of California
FORUM July/August 2026
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