California Legal Brief

The Rule of Higginson is that dismissal of a CLRA claim for failure to file a concurrent venue affidavit must be without prejudice (with leave to amend), not with prejudice, under Civil Code section 1780(d), and that unremedied discovery misuse that deprives a party of material evidence required for trial warrants a new trial and monetary sanctions, under circumstances where a party falsely verifies that responsive documents "never existed" and the court's remedial jury instruction becomes ineffective due to evidentiary exclusions.

The Rule of Gerard v. Cuevas is that a trial court cannot retroactively shorten a notice period under Code of Civil Procedure section 1987 to 91 minutes and then impose a terminating sanction when the defendant fails to appear, under circumstances where the original notice was untimely served and the court had not previously ordered shortened time.