Wiggle Room in the Rog Rules

Plascencia v. Deese, No. B299142 (D2d6 Jan 20, 2021)

A jury in this wrongful death auto case awarded the plaintiff $30 million in non-economic damages apportioned at 40 to the Defendants and 60 percent to a driver who played a role in the accident by making an illegal U-Turn. But they weren’t the only defendants involved. Plaintiff also sued, and settled with, the State and the owner of a Roadside Business, whom Plaintiff alleged created unreasonably dangerous conditions in the roadway at the accident site.
Under Proposition 51, non-economic damages are not joint and several—they are to be apportioned between all potential defendants based on proportionate fault. 

That means that a jury is generally instructed to determine the proportionate fault of even absent (settled, dismissed, never sued) co-tortfeasors. Here, however, Defendant provided some contention rog responses that pinned 100 percent of the fault on the U-Turn Driver. Based on those responses, the trial court granted a motion in limine that excluded evidence of the fault of the State or the Roadside Business and declined to instruct the jury to find their comparative fault. 

That was error. The Court’s in limine ruling was effectively an evidentiary sanction for a discovery violation. But under the provision in the Discovery Act that addresses interrogatory sanctions, the trial court is only authorized to issue evidentiary sanctions for a failure to “obey an order compelling answers.” Code Civ. Proc. § 2030.290(c). The court shouldn’t and can’t make evidentiary sanctions just based on the inadequacy of the response, even in the guise of an in limine motion. Indeed, the ruling was particularly problematic in this case because the court and the parties were aware throughout the course of the litigation that the setting defendants likely bore a good chunk of the fault.

So if Plaintiff wanted to set up preclusion, it would have needed to move to compel a response that addressed the liability of the settling parties, and then sought sanctions for the non-compliance with that order. Absent that, the best Plaintiff could have done would have been to have used the rog responses against the Defendant as an admission if or when the Defendant sought to shift blame at trial.

The Court’s analysis is a correct read of the law here, but it does highlight a limit on the utility of interrogatories as a discovery device in state court. Had this case been tried in federal court, Defendant would have been obligated to supplement the responses under Rule 26(e)(1)(A). Then, under Rule 37(e)(1), his failure to do so without substantial justification could have resulted in the kind of preclusion ordered by the court here. That effectively lets you use interrogatories to lock down your opponents theories of the case before trial. 

On the other hand, it is very difficult to do that under the state court rules. There’s no duty to supplement. And even if you serve a well-timed demand to supplement, there’s no meaningful enforcement measure even if responses served right before trial are incomplete. To say Plaintiff could have moved to compel doesn’t really offer a solution either. Presumably, the rogs asked who was at fault and the responses said that Defendant’s contention was that U-Turn driver was 100% responsible. That seems like a complete response to me. What exactly should Plaintiff have asked the court to compel Defendant to add?

In any event, the apportionment thing wasn’t the only error. Plaintiff’s lawyer also committed misconduct during closing argument. He baselessly accused Defense counsel of fraud just for defending the case, suggesting that “you can’t stone him to death,” but that the jury could “make him pay.” He also violated an in limine ruling ordering not to make a so-called Golden Rule argument—a play to the sympathy of the jury by asking the jurors to imagine that one of their own children were killed. The Court of Appeal holds that this was misconduct, and—given that the “$30 million verdict is so large that it shocks the conscience and suggests passion or prejudice on the part of the jury”—that it was so prejudicial as to require reversal.

Reversed.