Hartbrodt

The issue presented by this appeal is whether the terminating sanction of dismissal of the complaint may be imposed for refusal to comply with an order of production made pursuant to Code of Civil Procedure section 2031 when plaintiff’s refusal is based on the privilege against self-incrimination. A collateral issue is whether plaintiff may avoid a dismissal by voluntarily dismissing without prejudice prior to the hearing on the motion to dismiss. We resolve the first issue in the affirmative and the collateral issue in the negative and affirm the judgment.

Procedural and Factual Background

On December 10, 1991, appellant Rick Hartbrodt filed an action against respondents William Burke, James Bainbridge, Bentley Industries Inc., Amtec, Ltd., a Barbados limited partnership, and Quantronics, a Hong Kong limited partnership, to recover $2 million. Hartbrodt’s second amended complaint alleged 12 causes of action based on theories of contract and tort. The common and central allegation of Hartbrodt’s pleading is the claim that he and the respondents orally agreed to create and operate a 900-number sweepstakes company. The agreement called for Hartbrodt to contribute $2…