LAGUNA AUTO BODY et al., Plaintiffs and Appellants, v. FARMERS INSURANCE EXCHANGE et al., Defendants and Respondents.
No. G009371
Fourth Dist., Div. Three
June 20, 1991
481
[Opinion certified for partial publication.*]
Ernest J. Franceschi, Jr., for Plaintiffs and Appellants.
Himes, McDonough & Strickland, and Linda G. Strickland for Defendants and Respondents.
OPINION
MOORE, J.- Plaintiffs Laguna Auto Body and Lonnie Reagan (appellants) appeal from the dismissal of their complaint against defendant Farmers Insurance Exchange (respondent).1 The trial court found appellants’ actions preceding the dismissal order were an abuse of the discovery process.
This case was assigned to the superior court‘s expedited trial progrаm established under the Trial Court Delay Reduction Act of 1986. (
As will be seen, we hold the rules embodied in the discovery statutes apply to expedited trial program cases, and that courts in that program are not precluded from using dismissal as a sanction in an appropriate case. Moreover, in light of appellants’ actions preceding the dismissal order, we find there was no abuse of discretion in dismissing the instant case.
I
FACTS
This appeal arises out of an insurance dispute which arose after appellants’ business was destroyed by fire. On March 10, 1989, exactly one year after the fire, appellants filed a complaint for damages, alleging causes of action
On June 30, respondent served a first set of form interrogatories, a request for admissions, and a demand for production of documents on appellants. Appellants did not respond. Respondent filed a motion to compel answers to interrogatories which was heard on Sеptember 22. Appellants did not file any written opposition to the motion. Also on June 30, respondent noticed the deposition of appellant Reagan for August 16. On that date, neither Reagan nor his counsel appeared.
At the September 22 hearing, appellants’ counsel appeared to orally oppose the motion to compel. The court‘s tentative ruling was to grant the motion in its entirety, order answers to the outstanding discovery, and admit the issues presented in the rеquest for admissions. However, respondent‘s counsel agreed to compromise and accept late responses to the requests for admissions in exchange for a court order that appellants provide all documents demanded for production and answers to the outstanding interrogatories by September 29 at 5 p.m. Accordingly, the court made such an order.
September 29 came and went without appropriate responses or production by appellants. Aрpellants’ counsel telephoned respondent‘s counsel on that date and indicated answers would be produced, but that the documents would be produced late because they were so voluminous and difficult to photocopy. Based on appellants’ counsel‘s representation, respondent‘s counsel once again graciously extended the time for production to October 2.
Included in the interrogatories was the 50.0 series of Judicial Council form interrogatories relating to breach of contract:
“50.2 Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.
“50.3 Was performance of any agreement alleged in the pleadings excused? If so, identify each agreement excused and state why performance was excused.
“50.4 Was any agreement alleged in the pleadings terminated by mutual аgreement, release, accord and satisfaction, or novation? If so, identify each agreement terminated and state why it was terminated including dates.
“50.5 Is any agreement alleged in the pleadings unenforceable? If so, identify each unenforceable agreement and state why it is unenforceable.
“50.6 Is any agreement alleged in the pleadings ambiguous? If so, identify each ambiguous agreement and state why it is ambiguous.”
In response to each of the interrogatories contained in the 50.0 series, appellants submitted the same objection: “Objection: Oppressive, harassing and burdensome, the information sought seeks plaintiff‘s [sic] counsel‘s legal analysis and theories regarding laws, ordinances, safety orders, etc., which are equally available to defendant; the question also invades the attorney‘s work product privilege ....” As noted, the court‘s order required answers, not objections.
October 2 came and went without production of the promised documents. After trying to reach аppellants’ counsel by telephone for several days, respondent‘s counsel contacted appellants’ counsel‘s office on October 4 about the promised documents and answers. She was told by appellants’ counsel‘s secretary that appellant Reagan had not provided any documents to appellants’ counsel. Respondent‘s counsel granted appellants until October 6 to provide the answers and documents.
October 6 came and went withоut any response by appellants. On October 12 the parties appeared for a status conference and on an order to show cause for the parties’ failure to submit a joint at-issue memorandum. Each party had filed a unilateral at-issue memorandum. Following the hearing, appellants’ counsel showed respondent‘s counsel documents in the trunk of his car which he represented to be documents he had received from appellant Reagan.3 Respondent‘s counsеl granted appellants a further extension to October 16 to photocopy and provide the documents and answers to interrogatories.
October 16 passed and appellants failed to provide answers to the interrogatories or documents. Accordingly, on November 1, respondent filed a motion to dismiss or, in the alternative, for sanctions pursuant to sections 2023, subdivision (a)(7), 2030, subdivision (k) and 2031, subdivision (k). Hearing was set for December 15. Respondent did not file any opposition, even though the hearing was continued to January 5.4 When respondent‘s
On January 8, the court issued an order granting the motion to dismiss as to all parties. On January 19, appellants filed a motion to reconsider. The trial court heard that motion5 on March 9, and on March 12 entered an order denying the motion, stating “[t]he Court finds that the plaintiff‘s [sic] actions preceeding [sic] the dismissal order were an abuse of the discovery process.” This appeal followed.
II, III*
IV
DISMISSAL WAS PROPER UNDER THE DISCOVERY STATUTES
At the outset, it is important to state what this case is not about. This is not a situation where appellants suffered the ultimate dismissal sanction for their first transgression or violation of a discovery rule. Even though thе court did not impose prior monetary sanctions, the dismissal sanction was the culmination of a history of acts in which appellants obstructed discovery, failed to honor their stipulation with counsel that they would comply, and defied a court order. Not only did appellants fail to respond to discovery, they also failed to oppose respondent‘s motion to compel or file any opposition to respondent‘s motion to dismiss the case.
This court has traditionally encouraged trial attorneys to adhere to their professional responsibilities of cooperating, stipulating, and working to-
The order of the trial court is presumed correct and all intendments and presumptions are indulged to support the order on matters to which the record is silent. It is appellants’ burden to affirmatively demonstrate error and, where the evidence is in conflict, this court will not disturb the trial court‘s findings. (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 123 [260 Cal.Rptr. 369]; Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 645, fn. 2 [192 Cal.Rptr. 57].)
Section 2023 provides that dismissal may be used as a sanction when there has been a misuse of the discovery process. The statute states in pertinent part thаt “(a) Misuses of the discovery process include, but are not limited to, the following: ... (4) Failing to respond or to submit to an authorized method of discovery. ... (5) Making, without substantial justification, an unmeritorious objection to discovery. ... (6) Making an evasive response to discovery. ... (7) Disobeying a court order to provide discovery. ....” In providing punishment for the actions described above, the Legislature has imposed a duty on parties to be forthright and honest in their attempts to reach the merits of the action.
Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 [149 Cal.Rptr. 499]; Young v. Rosenthal, supra, 212 Cal.App.3d at pp. 118-119.) “The trial court has a wide discretion in granting discovery
A prerequisite to the imposition of the dismissal sanction is that the party has wilfully failed to comply with a court order. (Young v. Rosenthal, supra, 212 Cal.App.3d at p. 114.) Here, the motion to compel answers was granted by the court on September 22, 1989. Appellants contend they ultimately complied on September 29. However, the responses consisted of several objections, not answers.
Section 2030, subdivision (k) provides, in part, that “If a party to whom interrogatories have been directed fails to serve a timely response, that party waives ... any objection to the interrogatories, including one based on privilege or on the protection for work product under Section 2018.” The statutory time limit for response, absent a court order or stipulation to the contrary, is generally 30 days. (§ 2030, subds. (h),(i).) Here, the time from the propounding of interrogatories to the receipt of answers was more than three times that allowed.
On January 5, 1990, appellants changed the responses to unverified answers as follows:
“RESPONSE TO INTERROGATORY NO. 50.2:
“Defendants breached the agreement when they refused to pay sums due and owing to plaintiff for losses caused by the accidental fire which date is known to defendants.
“RESPONSE TO INTERROGATORY NO. 50.3:
“No.
“RESPONSE TO INTERROGATORY NO. 50.4:
“No.
“RESPONSE TO INTERROGATORY NO. 50.5:
“No.
“RESPONSE TO INTERROGATORY NO. 50.6:
“No.”
The simplicity of the final responses belies the assertion that the questions were ever “oppressive, harassing or burdensome.” The trial court could rеasonably infer appellants were merely obstructing and delaying discovery. As the court noted, the responses finally given were legally invalid, because they were unverified. Appellants were aware of the potential consequences of violating the court‘s order and, in light of their continued defiance of discovery and the court order, “repeated warnings would have been futile.” (County of El Dorado v. Schneider (1987) 191 Cal.App.3d 1263, 1277 [237 Cal.Rptr. 51]; Young v. Rosenthal, supra, 212 Cal.App.3d at p. 119.) It would be unjust to require respondent to file another motion to compel further answers when the rеsponses given were patently defective and merely served to further delay discovery. Therefore, appellants’ argument that they substantially complied with the court‘s order is without merit.
Appellants rely on Midwife v. Bernal (1988) 203 Cal.App.3d 57 [249 Cal.Rptr. 708], where the court reversed the imposition of sanctions on Midwife who had failed to show for his noticed deposition. In imposing sanctions, the court relied solely on the failure to appear and considered no other factors. Based upon the lack of evidence of misconduct or bad faith, the Court of Appeal found there was no showing the violation was willful and, therefore, the sanctions could not stand. (Id. at pp. 62-63.) However, Midwife v. Bernal is distinguishable. Here, the justification for imposing discovery sanctions was based upon not one, but a multitude of violations. Where, as here, the record is replete with instances of delay and failure to comply with a court order, dismissal may be proper. Moreover, appellants had ample opportunity to present their arguments and excuses to the trial cоurt. Instead, they failed to file opposition to the motion to compel or the dismissal motion, leading the trial court and us to presume they had no meritorious arguments. (Hammond Packing Co. v. Arkansas (1909) 212 U.S. 322 [53 L.Ed. 530, 29 S.Ct. 370].)
Appellants also seek to rely on Brown v. Presley of So. California (1989) 213 Cal.App.3d 612 [261 Cal.Rptr. 779], in support of the contention that dismissal as a sanction for failure to appear for a deposition is an abuse of discretion. That case is inapposite. In Brown, the court held it would be an abuse of discretion to impose a dismissal sanction where counsel appeared on time, and agreed to comply with a court order and pay previously
Appellants misapprehend the issue here. They urge section 575.2 requires that when only counsеl and not the party is responsible for failing to comply with local rules, the court is limited to imposing penalties upon counsel and may not impose sanctions which adversely affect the party‘s cause of action.7 But
We reiterate, however, in this case it was continued wilful violations of the discovery statutes embodied in the Code of Civil Procedure which prompted the court‘s order dismissing the action. This is not a case where the court assessed sanctions against the attorney or the client for noncompliance with expedited trial program rules or procedures. Accordingly, cases which have discussed noncompliance with those rules or procedures are not controlling. (See e.g., Cooks v. Superior Court (1990) 224 Cal.App.3d 723, 726 [274 Cal.Rptr. 113]; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 499 [256 Cal.Rptr. 296].) No statutory or case law authority proscribes the appropriate use of dismissal as a sanction by a trial judge in the expedited trial program. Clearly, “[t]he fact that this is a ‘Fast Track’ case does not annul or make inoperative previous statutes and case law.” (Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 925 [247 Cal.Rptr. 477].)
The judgment is affirmed. Respondent shall recover its costs on appeal.
Sonenshine, Acting P. J., concurred.
WALLIN, J., Dissenting.—The majority correctly frames the issue in this case as “whether the trial court abused its discretion in dismissing the action in light of the discovery statutes embodied in the Code of Civil Procedure and interpreted by case law.” (Maj. opn., ante, p. 491.) I respectfully disagree, however, with the majority‘s conclusion that no abuse occurred.
It has long been accepted that discovery sanctions are not designed ” ‘to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.’ ” (Caryl Richards, Inc. v. Superior Court, supra, 188 Cal.App.2d 300, 303, quoting Crummer v. Beeler (1960) 185 Cal.App.2d 851, 858 [8 Cal.Rptr. 698].) Furthermore, “the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Deyo v. Kilbourne, supra, 84 Cal.App.3d 771, 793.) And it goes without saying that the ultimаte sanction of dismissal is ” ‘a drastic measure which should be employed with caution.’ ” (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080 [256 Cal.Rptr. 522]; Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 793.)
When this case is viewed in light of these well-accepted principles and with a little common sense, it becomes clear that the sanction of dismissal was grossly out of proportion to the appellants’ conceded abuse of the discovery process. Appellants were served with interrogatories, requests for admission, and a request to produce documents on June 30. After a motion to compel the discovery and a stipulated court order to that effect, appellants
I sympathize with respondents’ frustration and applaud their counsel‘s efforts to seek an out-of-court resolution of the problem. And I do not condone appellants’ flagrant disregard for the discovery statutes. But the dismissal of the entire action was clearly punitive and excessive when compared to the relatively limited value of the withheld information. The five unanswered questions related to breach of contract; appellants’ complaint, although predicated on a contract of insurance, sounded primarily in tort. The complaint clearly pleaded the existence of the contract (in fact, attached a copy) and its breach. The interrogatories (see maj. opn., ante, pp. 484-485) had only slight application to the case and the answers were obvious from a mere reading of the complaint. The documents rеquested consisted of all correspondence and reports pertaining to appellants’ loss and support for their claim of lost earnings. An adequate sanction would have been to preclude appellants from using any such documentation at trial.
In any event, the trial court should have attempted monetary sanctions before resorting to dismissal. While appellants’ conduct was clearly abusive, it had not reached the point where dismissal was warranted as a first sanction. The slight injury to respondent‘s trial preparation by the failure to timely provide this relatively insignificant discovery should have resulted in a monetary sanction or, at most, an order precluding presentation of some portion of the claim for damages. The sledgehammer remedy of dismissal should not be used as the first punishment for discovery blunders.
I would reverse the judgment and order a new hearing to consider an appropriate first sanction for failing to make this discovery.
Appellants’ petition for review by the Supreme Court was denied September 18, 1991.