Fast and Loose Doesn’t Look Good on You

Padron v. Watchtower Bible & Tract Society of N.Y., Inc., No. D070723 (D4d1 Nov. 9, 2017)

In a child sex abuse case against a Church, the Church is stonewalling about producing documents detailing other abuse incidents. In another, related case, it previously convinced the Court of Appeal that terminating sanctions weren’t appropriate, in lieu of a coercive monetary penalty that could exceed the propounding party’s costs of litigating the discovery issue. See Lopez v. Watchtower Bible and Tract Society of New York, Inc., 246 Cal. App. 4th 566 (2016). So when the Church kept stonewalling in this case, following Lopez, the trial court found a willful refusal to comply with its discovery orders to produce exactly the same documents and by fined it $4,000 per day of noncompliance. The Church appeals, again.

But this time it doesn’t end well.

The thing is, in arguing that terminating sanctions were too drastic in Lopez, the Church argued, and the Court of Appeal agreed, that lesser monetary sanctions were a more appropriate remedy to coerce compliance with a discovery order. But now it argues that Plaintiff’s expenses incurred as a result of the noncompliance are the limits of the court’s sanctioning authority. The court of appeal rejects this argument, in two ways.

First, the Church is judicially estopped from making it. Having taken successfully taken a position before a court, the Church isn’t free to play fast and loose in taking an entirely contradictory position in a later case. 

But even were it not estopped, the Church also loses a matter of substance. After being ordered to produce documents, a party doesn’t have the option to just reargue the issue over and over again, even if it thinks the court was wrong. The trial had ample authority, both under its inherent power and the Discovery Act, to order the monetary sanctions it did. Indeed, the court suggests that, at this point, the terminating sanctions it rejected in Lopez might be merited.

The court goes on to reject an argument the Church raises against the underlying discovery because it amounts to a disagreement with the trial court’s factual findings. When discovery rulings get reviewed on appeal, any factual findings baked into them get reviewed only under the substantial evidence standard. There was more than substantial evidence in the record to support the court’s finding here, so the Court of Appeal won’t unsettle it.

The court also dispenses with a spurious First Amendment claim—that the discovery ruling intruded into a non-justiciable ecclesiastical question—as “almost specious.” The Church apparently claimed that a finding that it had possession, custody, and control over certain documents amounted to a finding adjudicating some religious issue of the Church’s structure. But during the course of the discovery litigation, the Church never claimed it didn’t have PCC. Instead, it repeatedly objected on burden and privacy grounds, never so much as raising the argument.

Finally, the court rejects the Church’s claim that its non-compliance was substantially justified. If you make an argument in opposition to discovery and lose, you don’t get to rely on that argument again as a basis not to follow the court’s order compelling production. That’s pretty much the opposite of substantial justification.

Affirmed.