Father, the Sleeper Has Awakened!

Golf & Tennis Pro Shop, Inc. v. Superior Court, G060852 (D4d3 Oct. 27, 2022)

Nothing awakes a sleeping civpro blogger from a two-month slumber like a writ case on a first-impression discovery issue.

Three Real Parties in Interest, who are the plaintiffs in the underlying case whose substance remains obscure, timely served responses to Petitioner’s interrogatories. Although they included both objections and responses, they didn’t immediately provide verifications. 

(This is something that used to happen all the time, back when the client needed to drop it in the mail or find a scanner. Less so now when, in a pinch, the client can just take a photo of the verification’s sig page.) 

Verifications were served about a month later. Just about 47 days after that, Petitioner served notices of motion to compel, without any supporting papers. They served the guts of their filings 18 days before the hearing date. The motions were directed to overruling the objections. They took no issue with the responses. The trial court denied the motions as untimely. Petitioner took a writ.

But as the Court of Appeal points out, noting that it’s an issue of first impression, Code of Civil Procedure § 2030.300(c) specifically requires “notice of [a motion to compel be] given within 45 days of the service of the verified responses[.]” Indeed, the “verified” requirement was specifically added by the Legislature in 2013 to address the “verification to follow” issue. So the clock doesn’t run until verifications are served. The Court finds that this applies to mixed responses that contain both objections and substantive responses. (It leaves for another day what happens when someone serves only objections, to which no verification is required.) 

But that still does not save the motions against two of the RPIs. Petitioner apparently submitted its notices of motion to an efiling vendor* on the 47th day after they received the verification. (2 days extra for electronic service.) But Petitioner, didn’t submit proof that the Court accepted the filing under Rule of Court 2.259(a)(2). So the Court deems the actual filing to have occurred the following day―a day too late!

And as to the last PRI, Petitione’rs trick of only providing a notice of motion without the rest of the motion papers was too cute for the Court of Appeal. Although § 2030.300 textually requires only “notice,” § 1010, which defines “notice,” says a notice needs to include the grounds on which it will be made. See also Rule of Court 3.1110(a). This rule is seldom followed by attorneys―I probably break it in every motion I file. But when you file a brief with the notice of motion, the failure is harmless and excused. But with no memo and no grounds in the notice, notice was inadequate. Indeed, in a footnote, the court construes § 2030.300 with § 1010 to require all the relevant papers―notice, memo, declarations, meet and confer declaration―to be served at the same time within the 45-day window.

Finally, Petitioners challenge an award of about $5k in discovery sanctions, claiming they were substantially justified under § 2030.300 because the timing issue was first impression. But that Court isn’t having that either. As it explains, “Petitioner’s motions may have involved a vagary of civil procedure, but the motions were properly denied because of petitioner’s own mistakes.”

So all Marbury v. Madison-style, the law having been clarified, Petitioners get no relief. Writ denied.

*I took a bit of hiatus from this project, mostly because the main civ. pro. cases that dropped over the past two months were a bunch of boring anti-SLAPP cases. But since I’m back on the blog horse, let me take a few minutes to rant about the ridiculous state of e-filing in our trial courts. 

You see, about a decade ago, we still did not have state court e-filing. That’s because, back in 2003, the Judicial Council hired some consultants to build the end-all-be-all of statewide case management software. (I imagine here the car designed by Homer Simpson.) By 2013, they had spent more than half a billion dollars. And it didn’t work. Indeed, they figured it would cost another billion-and-a-half to get it up and running. So they scrapped that whole program. 

Now, by that point, pretty much every jurisdiction, everywhere, already had a e-filing system. (Full civil PACER/ECF came on line in the C.D. while I was a law clerk in 2006 or 2007.) So, one would think that the benefit of being last would be to pick the best existing system, license it, and get it up and running. (FWIW, I’m kind of partial to the Case Management System used by the Nevada’s appellate courts, which appears to be built on a platform used by several jurisdictions.) But that would be too easy for California.

Instead they made a Rule of Court allowing each separate court to “provide for the electronic filing of documents directly with the court, indirectly through one or more approved electronic filing service providers, or through a combination of direct and indirect means.” Rule of Court 2.252(b). This is typically done by courts contracting out with various e-filing vendors. Los Angeles Superior has an enormous number of them. OC Superior—from which the writ here was taken— has a more restrained eleven. And they work like a middleman. You file the document with the vendor, which transmits it to the court somehow, and then some amount of time later, the court “accepts” the filing. But the gap between filing and acceptance can take days. Especially for new complaints. So we have adopted an efiling system that actually manages to make things slower. 

Because California. Welcome to the jungle.

Steady Targets

Field v. U.S. Bank, N.A., No. B309111 (D2d8 Jun. 9, 2022)

In a wrongful foreclosure case, the Bank propounded an interrogatory on Plaintiff, asking whether it was her contention that she did not receive the appropriate form of notice, and if so, to explain the facts in support. Plaintiff answered, simply, but un-enlighentingly, “unsure.”

So the bank moved for SJ, arguing in part that there was no evidence of any notice violation. In response, Plaintiff “claim[ed] with new-found certainty that she had never received th[e] notice.” The trial court granted summary judgment nonetheless. 

Plaintiff appeals, in part based on the idea that her rog response shouldn’t have precluded her from introducing evidence that the appropriate notice was not, in fact, given. But the Court of Appeal, in a characteristically blunt opinion by Justice Wiley, calls bullshit. 

Responding to Plaintiff’s assertion that it was unjust to grant SJ based on her one-word answer to a basic interrogatory asking for information clearly with her knowledge, the Court responds that “[w]hat is unjust is discovery abuse.” “What Field should have done was answer this simple contention interrogatory unambiguously, forthrightly, and truthfully. If her contention was she never got notice of the trustee’s sale, she had to say so and to provide the facts related to this contention.”

And then the money quote to be quoted in many a future brief : “A party opposing summary judgment may not move the target after the proponent has launched its arrow.”

Affirmed.

Having been in this spot as a defendant moving for SJ, this opinion is awesome. 

But, as the Court points out “section 2030.310 provides a mechanism for parties to amend responses to interrogatories under certain circumstances, yet Field did not attempt to amend.” What if, the day before Plaintiff filed her opp, she amended her reg responses to incorporate what she would claim in opposition? I have, over the years, written about cases that say that would have been good enough to beat summary judgment. 

There needs to be a clearer rule here. As I discussed in my prior posts, at minimum, whether a moving defendant can meet its burden should be ascertained based on the rog responses in effect at the time an SJ motion is filed, not those on file two months-plus later when the opposition comes in. To say that the movant retroactively failed to meet its burden, based on some post-motion amendment, is a recipe for gamesmanship. 

And then if, once an SJ is on file, the opponent wants to amend its responses to support the existence of disputes of fact, § 2030.310(c) is implicated. It says that a party answering an interrogatory can be forced to stick with a prior response only if:

“(1) The initial failure of the responding party to answer the interrogatory correctly has substantially prejudiced the party who propounded the interrogatory.

 (2) The responding party has failed to show substantial justification for the initial answer to that interrogatory.

 (3) The prejudice to the propounding party cannot be cured either by a continuance to permit further discovery or by the use of the initial answer [for impeachment].”

It seems to me, in the SJ context, when a non-moving party gives junky original responses to interrogatories, elements (1) and (3) of § 2030.310(c) should basically follow axiomatically, provided element (2) is established. 

That is, if at the time a party moves for SJ, the opponent has made only obviously and unjustifiably deficient responses but tries to amend around them without a good reason to do so, the moving party is substantially prejudiced. After all, it can’t get its meritorious motion decided under the prevailing standard due to its opponent’s discovery abuse. And if there’s no substantial justification for the belated amendment, a continuance doesn’t fix that prejudice. Because the issue is not that the non-moving party didn’t have time to take adequate discovery, but instead, that it was just playing games. As the Court puts it here: “Trial courts encountering such an abuse are free to disregard a later declaration that hopes to supplant tactical or slothful ambiguity with tardy specificity.”

On the other hand, if the moving party was late to produce discovery, or if previously unknown evidence legitimately comes to light after an SJ is filed, of course it is substantially justifiable to permit amendment and not stick the non-moving party with its original interrogatory answers. In that case, (1) and (3) don’t even need to come into play.

 

 

 

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.

Formally Deficient ≠ Factually Devoid

Bayramoglu v. Nationstar Mortgage LLC, No. C084299 (D3 Jul. 1, 2020)

Almost 20 years ago, in Aguilar v. Atlantic Richfield Co., the California Supreme Court aligned state summary judgment procedure with federal procedure that he been clarified in a trio of 1986 opinions by the federal supreme court. But Aguilar kept one distinction, grounded in the statutory text of Code of Civil Procedure § 437c(b). While the U.S. Supremes’ Celotex decision permits a moving defendant to meet its burden by simply “pointing out” that there’s no evidence on an element of plaintiff’s claim, under Aguilar, the moving party needs evidence of the absence of evidence to substantiate that assertion. 

Of course, evidence of lack of evidence is kind of a tricky thing to come up with. But, relying on a few earlier cases, Aguilar explained one key kind of evidence moving party could use to sustain its burden: the “factually devoid interrogatory answers.” So, those in the know on state court procedure generally serve an early set of requests for admission on each of the ultimate facts that plaintiff needs to prove, accompanied by an official form interrogatory 17.1 (which requires the respondent to state all facts and identify all evidence that support the denial of an RFA), and then later serve a supplemental rog demand whose response is due a couple weeks before a summary judgment motion will be filed. Junky responses to those ensure you can meet your burden under Agulilar. 

Defendant here basically ran that playbook. It served interrogatories asking the plaintiff to explain what evidence supported its contentions. The responses it got back from Plaintiffs just listed the Bates numbers of a bunch of documents, citing to § 2030.230. The trial court found this inadequate, which, in its view made the responses “factually devoid” so as to meet the moving Defendants’ burden.

The Court of Appeal disagrees, and reverses. Plaintiffs’ responses might well have been deficient under § 2030.230, which only permits a reference to documents when the response “would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party[.]” But that doesn’t necessarily mean they were “factually devoid.”

As an example, the court posits a contention interrogatory that demands all facts supporting plaintiff’s assertion that they own a house. (This is a foreclosure case.) In their response, Plaintiffs cite the Bates numbers to the deed, the sale contract, and the mortgage docs. That response is clearly inappropriate under § 2030.230. Nonetheless, however, the response does, in fact, identify evidence to support the contention. The propounding party there would clearly have a remedy in moving to compel a compliant response. But that wouldn’t make the non-compliant responses citing docs “factually devoid.”

Reversed.

More Sport in State Court

Mitchell v. Superior Court, No. B264143 (D2d4 Dec. 22, 2015)

Defendant in a PI case moved in limine to exclude witnesses who were not disclosed in Plaintiff’s interrogatory responses, which the trial court granted. Problem is, the relevant interrogatory (Form Rog. 12.1) calls only for the disclosure of witnesses to the accident and not to witnesses to Plaintiff’s post-accident disabilities, which is what the witnesses here were apparently expected to testify about. So the court of appeal grants a writ. 

Deny This!

City of Glendale v. Marcus Cable Assocs., No B249094 (D2d5 Mar. 18, 2015)

In a dispute with a cable provider, the City of Glendale denied an RFA on an issue that it ultimately lost at trial. After finding that Glendale lacked a reasonable basis for the denial, the trial court awarded the cable company the costs and fees associated with proving that fact under Code of Civil Procedure § 2033.420.

The court here holds at a federal telecommunications law that limits the available relief in such cases to injunctive and declaratory relief precluded recovery of a monetary award under § 2033.420. The crux of the court’s analysis is that a § 2033.420 award isn’t really a discovery sanction, but is instead similar to a statutory award of costs and attorneys’ fees. Because federal cases had held that the federal statute barred recovery of these kinds of items, the court of appeal bars a § 2033.420 recovery in this case.

Reversed.