Sandbaggers Lose in the End

Reales Investment, LLC v. Johnson, No. E072523 (D4d2 Oct. 5, 2020)

A local rule in Riverside County Superior Court requires a bunch of pretrial disclosures of witnesses and evidence, at the expense of the exclusion of anything that is not disclosed. Plaintiff’s original attorney was relieved before making any of the required disclosures. And its new attorney—who appeared for the first time on the first day of trial—didn’t make them either. After the court denied the new attorney’s oral motion for continuance, it ultimately found that Plaintiff’s evidence would be excluded under the local rule, and on that basis granted a nonsuit for Defendant.

First, there was no error in denying the continuance. Plaintiff’s first attorney was relieved more than three months before trial. It had adequate time to find new counsel, and if more time was required to get them up to speed, such counsel could have filed a proper written motion for a trial continuance. By waiting till the first day of trial to make the substitution and only then seeking an oral continuance, Plaintiff failed to establish good cause. 

So far as failure to comply with the local rule goes, the noncompliance was basically undisputed. Nor did Plaintiff’s late hiring of counsel excuse the failure to make the required disclosures. Moreover, the record also revealed substantial discovery misconduct on Plaintiff’s part, such as giving nonsensical responses and failure to produce any documents or to make any percipient, PMK, or expert witnesses available for depositions. Thus, along with the local rule violation, evidentiary preclusion sanctions would have also been in order.

Affirmed.

For what it’s worth, the discussion of discovery sanctions here is interesting. Relying on the text of certain provisions in the Discovery Act, a bunch of cases say that non-monetary sanctions like issue or evidence preclusion are authorized only if the guilty party violates a court order. See, e.g., New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th 1403, 1427 (2008). Of course, if an opposing party rolls into trial and starts putting into evidence undisclosed documents or testimony, the prejudiced party might never have gleaned that it needed to file a motion to compel, so there will be no order to violate. Under the federal rules—which include a self-executing duty to supplement responses absent from the Discovery Act—a failure to disclose evidence can lead to automatic preclusion under FRCP 37(e)(1). Which makes a lot of sense, since there’s no surefire way to catch this kind of sandbagging before trial. To the extent this case suggests a similar rule, at least in the pre-trial non-disclosure context, it’s a useful citation to keep in the quiver.