Opinion
B224220
10-19-2011
AL WARD et al., Plaintiffs and Appellants, v. TESSER & RUTTENBERG et al., Defendants and Respondents.
Law Office of Gerald Philip Peters and Gerald P. Peters for Plaintiffs and Appellants. Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and Michael W. Feenberg for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC388575)
APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Shook, Judge. Affirmed.
Law Office of Gerald Philip Peters and Gerald P. Peters for Plaintiffs and Appellants.
Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and Michael W. Feenberg for Defendants and Respondents.
INTRODUCTION
Plaintiffs Al and Cynthia Ward appeal from a judgment of dismissal in favor of defendants Tesser & Ruttenberg and Kenneth Ruttenberg. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, plaintiffs were part of a consolidated action, along with several of their neighbors, concerning construction defects in their residential development. The defendants represented plaintiffs in four mediation sessions, presided over by Judge Victoria Chaney, which ultimately resulted in a global settlement offer from the underlying defendants, which plaintiffs accepted.
On April 7, 2008, plaintiffs filed a legal malpractice lawsuit against defendants. According to plaintiffs' complaint, defendants did not allow plaintiffs to attend mediation sessions, misrepresented critical information, and pressured plaintiffs to accept a settlement amount far below the cost of their actual damages. Two months after filing the complaint, plaintiffs changed counsel to plaintiff Cynthia Ward's sister, Jo Ana Saint-George (Saint-George). Saint-George subsequently suffered from serious illness throughout the duration of this case in the trial court.
Despite defendants' repeated accommodations for Saint-George's poor health, plaintiffs were uncooperative and inattentive, culminating in a record riddled with delays and back-and-forth litigation. Problems began even before Saint-George's hiring, when plaintiffs failed to appear for their depositions and did not respond to rescheduling requests. After the change of counsel, there were numerous continuances and extensions granted due to Saint-George's illness. Meanwhile, despite failing to respond to defendant's discovery requests, presumptively because of her health, Saint-George managed to propound two identical improper discovery requests, the first withdrawn, and the second countered with defendant's protective order.
Plaintiffs also repeatedly failed to answer defendants' discovery requests. As a result, defendants served special interrogatories and a demand for production of documents on plaintiffs, with all requests relating to the underlying construction defect suit. When plaintiffs failed to respond to these discovery requests despite defendants' follow-up emails, defendants filed two motions to compel. Plaintiffs never opposed the motions and did not object to any part of the motions, including the fact that the motions only attached a few pages out of the 2,602 discovery requests. The afternoon before the hearing on these two motions, Saint-George emailed unverified responses to the interrogatories with numerous objections. Saint-George's last-minute efforts were too little and too late for the trial court, which granted the motions to compel, ordered plaintiffs to answer the discovery within 20 days, and imposed monetary sanctions. Plaintiffs were served with this order on October 30, 2009.
On December 3, 2009, defendants emailed Saint-George asking for the court-ordered documents and responses, and reminding her that her 20-day deadline had passed. When Saint-George did not reply, defendants filed a motion for terminating sanctions on January 8, 2010. Saint-George subsequently emailed defendants after the motion was filed, essentially conceding that she had not yet provided defendants with some of the discovery documents. Defendants had been notified Saint-George was ill and would be unavailable between December and the beginning of January and, prior to Saint-George's absence, defendants did not correct her belief that the discovery responses were adequate or caution her that they would file for sanctions.
Plaintiffs' untimely response to the motion for terminating sanctions claimed that they had complied with discovery prior to the motion to compel, and that they had provided sufficient, although unverified, responses to defendants' interrogatories. Defendants' reply argued that these responses were merely a duplication of the incomplete responses that led to the court order.
The hearing on the terminating sanctions motion highlighted the totality of the factual disagreements between Saint-George and defendants. Saint-George and defendants expressed conflicting accounts of the timeliness, adequacy and relevance of the propounded discovery and responses, in addition to whether meet and confer efforts had failed or even occurred. Furthermore, both defendants and Saint-George fundamentally disagreed about whether the opposing party had made good faith efforts to communicate, whether the discovery had been answered at any point, and whether the volume of discovery requests was burdensome. After weighing the evidence and oral arguments presented by both sides, the trial court granted defendants' motion for terminating sanctions. Plaintiffs now appeal.
DISCUSSION
Plaintiffs contend that the trial court abused its discretion in imposing terminating sanctions since (a) the trial court failed to consider that plaintiffs had no prior history of discovery abuse, (b) defendants failed to satisfy their burden of demonstrating prejudice as a result of plaintiffs' failure to provide discovery, (c) the trial court failed to consider Saint-George's illness, and (d) the trial court failed to consider the voluminous nature of the discovery. We disagree.
In addressing an appeal, we begin with the presumption that the trial court's ruling is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) "The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action." (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904.) "'"'Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful . . . (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) As a result, this court does not need to be in perfect agreement with the trial court that the circumstances justified the sanctions the trial court chose. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) The trial court's choice of sanctions can be overturned only with a showing of "manifest abuse exceeding the bounds of reason." (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988.)
Similarly, it is plaintiffs' burden to affirmatively demonstrate the trial court erred 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.) To the extent that the record is ambiguous as to the factual discrepancies about the communication and exchange of discovery between parties, "[w]e view the . . . record in the light most favorable to the [trial] court's ruling, and draw all reasonable inferences in support of it." (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 765.) A. History of Discovery Abuse
Since we begin with the presumption that the trial court's judgment was correct, the "party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Meeting this burden requires citation to relevant authority and argument. (Mansell v. Board of Adminstration (1994) 30 Cal.App.4th 539, 545-546; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) It is not the responsibility of this court to conduct legal research in search of authority to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) The failure to meet this burden forfeits the issue on appeal. (Mansell, supra, at pp. 545-546; Dougherty, supra, at p. 282.)
Plaintiffs have cited no authority to support the contention that the trial court should have considered the fact that plaintiffs had no prior history of discovery abuse. As a result, this argument has been forfeited. In any event, as we discuss in part E, post, the record supports a finding plaintiffs were guilty of repeated misconduct and violations of the discovery statutes. Plaintiffs' contention, therefore, is without merit. B. Prejudice
Plaintiffs argue that the party moving for sanctions has the burden of demonstrating it has sustained prejudice as a result of the failure to provide discovery, and defendants have failed to do so. They also argue defendants were not prejudiced because seven months still remained before trial, and this was sufficient time for defendants to prepare experts, a motion for summary judgment, and for mediation. Defendants argue that plaintiffs have forfeited this claim by arguing it for the first time on appeal.
As a general rule, an appellate court will consider only the points raised in the trial court. (Hayward Lbr. & Inv. Co. v. Ford (1944) 64 Cal.App.2d 346, 353.) Although this court can use its discretion to consider an argument for the first time on appeal, the argument must involve a pure question of law determinable from uncontroverted facts. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1141; Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 505-506.) Plaintiffs cite a list of apparently uncontested facts relating to defendant's lack of prejudice, yet a review of the record reveals these facts are far from agreed upon. Even setting aside appellate procedure, plaintiffs provide little evidence to support the contention that the trial court should have required defendants to prove prejudice before imposing terminating sanctions.
Plaintiffs rely heavily on Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285. While it is true that the Parker court reversed terminating sanctions because the moving parties did not demonstrate prejudice, these parties were non-propounding parties to the discovery in question. (Id. at p. 302.) This is a pivotal difference that plaintiffs skim lightly over. The Parker court held that the non-propounding parties must demonstrate prejudice as a result of the failure to provide discovery precisely and solely because they were non-propounding parties. (Id. at p. 301 ["in the case of a party who did not propound the discovery an award of sanctions is justified only if the nonpropounding party shows it suffered a detriment as the result of the sanctioned party's misuse of the discovery process"].) Parker is not applicable here because defendants propounded the discovery.
Other authority cited by plaintiffs is irrelevant or merely suggestive of prejudice as a factor. First, we fail to understand how Wilson v. Jefferson (1985) 163 Cal.App.3d 952, at page 958, speaks to defendants' burden to demonstrate prejudice. Second, plaintiffs cite Richards v. Miller (1980) 106 Cal.App.3d Supp. 13. The Richards court does state, "[w]e have not examined the interrogatories defendant has failed to answer, but suggest that plaintiff must show prejudice before he can have defendant's answer stricken." (Id. at p. Supp. 17, fn. 4.) Unfortunately for plaintiffs, this proposal is not controlling on this court. Therefore, plaintiffs have not met their burden of demonstrating reversible error on the grounds that defendants should have, and did not, show prejudice as a result of plaintiffs' failure to respond to discovery. (Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) C. Saint-George's Illness
Plaintiffs argue that the trial court failed to adequately consider both Saint-George's health and the possibility that defendants deliberately took advantage of Saint-George's absence when filing for terminating sanctions. We disagree.
While plaintiffs argue that there is "nothing in the record to indicate the trial court considered Saint-George's ill health as a mitigating factor," there is also no evidence in the record to indicate the superior court did not consider Saint-George's health. (Walling v. Kimball (1941) 17 Cal.2d 364, 373 ["'an appellate court will never indulge in presumptions to defeat a judgment'"]; People v. Clifton (1969) 270 Cal.App.2d 860, 862 ["'For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. . . . [T]he burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him [or her].'"].)
In fact, it would be reasonable to assume the trial court was quite aware of the numerous instances in which both the court and defendants agreed to accommodate Saint-George's health, and the record demonstrates several extensions and continuances granted as a result of this throughout the duration of this case in the trial court. Consequently, plaintiffs have not adequately demonstrated the trial court erred based on the record before us.
Furthermore, although plaintiffs amply cite to the record to demonstrate Saint-George was in fact quite ill, they fail to cite any authority that suggests that the trial court was required to take this into account. Plaintiffs weakly claim that the trial court should have considered "all relevant circumstances" when considering the sanctions, but once more, there is no evidence indicating that the trial court did not include Saint-George's health as a factor when imposing sanctions. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Even if the trial court did fail to fully consider the effects of Saint-George's health, the plaintiffs' failure to cite any authority forfeits this issue on appeal. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546; People v. Dougherty, supra, 138 Cal.App.3d at p. 282.) D. Volume of Discovery
Plaintiffs argue the trial court failed to consider whether the voluminous nature of the discovery requests was burdensome and thus a mitigating factor in their failure to provide discovery. Defendants contend that argument has been forfeited since it was not raised during proceedings at the trial court level. We disagree with both claims.
Plaintiffs' response to the motion for terminating sanctions is replete with references to both the voluminous number of discovery requests and the voluminous number of documents plaintiffs provided in response. Saint-George also articulated the volume of interrogatories orally to the trial court during the hearing on the motion for terminating sanctions. During the hearing, she referenced the number of requests ("now, mind you, it is 1300 interrogatories . . . ."), as well as plainly stating that she "elected to go ahead and answer them as opposed to wasting this court's time and tell you that 1300 interrogatories were onerous and burdensome and duplicative . . . ." The trial court took the case under submission to "review the various exhibits . . . submitted by Ms. Saint-George and her response to the motion." From this, it cannot be said that the trial court did not consider the volume of discovery requests as a factor when granting the terminating sanctions.
Similarly, plaintiffs argue that the trial court could not have based its decision on substantial evidence because only seven out of 2,602 discovery requests were included in the motion to compel. Nonetheless, due to the complexity and scope of the underlying construction defect suit, as well as the plaintiffs' need to prove the defect suit as a "trial-within-a-trial" for the malpractice suit, it is sensible to assume that the trial court believed the number and detail of the discovery requests was reasonable. Furthermore, the trial court was familiar with the delays and other aggravating factors caused by plaintiffs prior to the motion for terminating sanctions. Since we examine the record from the perspective most favorable to the trial court's decision, and make all reasonable inferences in support of it, we must conclude the trial court was satisfied with the record before it and had sufficient evidence to make its ruling. (Stephen Slesinger, Inc. v. Walt Disney Co., supra, 155 Cal.App.4th at p. 765.) E. Abuse of Discretion
The imposition of the ultimate sanction, termination of the action under Code of Civil Procedure section 2023.030, subdivision (d)(3), is "a drastic penalty and case law recognizes that it should be sparingly used." (Thomas v. Luong (1986) 187 Cal.App.3d 76, 81.) It is appropriate only for "continued willful violations of the discovery statutes." (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 490, disapproved on another ground in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.)
Plaintiffs argue that the trial court abused its discretion in imposing terminating sanctions because the trial court failed to consider the volume of the discovery, Saint-George's health issues, plaintiffs' lack of prior discovery abuse, and the fact that defendants did not demonstrate prejudice. As previously discussed, each of these arguments lacks merit. Finally, plaintiffs argue that the trial court abused its discretion because it failed to consider whether the imposition of lesser sanctions was appropriate, and whether the imposition of terminating sanctions resulted in a windfall to defendants. We disagree.
The record thoroughly supports the trial court's implied finding that plaintiffs were guilty of repeated misconduct and violations of discovery statutes. Plaintiffs did not bother to reschedule depositions after failing to appear, did not respond to repeated discovery requests, and still failed to comply after the trial court granted defendants' motion to compel. While the trial court is required to consider the "availability of other sanctions to cure the harm" (Stephen Slesinger, Inc. v. Walt Disney Co., supra, 155 Cal.App.4th at p. 764), monetary sanctions had already been imposed (and ignored), and any sanctions excluding other pleadings or evidence would defeat plaintiffs' efforts at meeting their "trial-within-a-trial" burden, and effectively terminate the case. (Ibid.) Moreover, we do not need to examine whether we would have imposed different or lesser sanctions, but rather whether the trial court abused its discretion in imposing the sanctions it did choose. (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620; Laguna Auto Body v. Farmers Ins. Exchange, supra, 231 Cal.App.3d at p. 491.) The trial court's choice of terminating sanctions, therefore, was not an abuse of discretion.
Lastly, plaintiffs contend that the imposition of terminating sanctions resulted in a windfall for defendants. It is a general rule that sanctions should not "'put the prevailing party in a better position than . . . if he had obtained the discovery [he was seeking] and it had been completely favorable to his cause.'" (Wilson v. Jefferson, supra, 163 Cal.App.3d at p. 958; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) There has been no such windfall to defendants here. The outcome of the malpractice suit was inexorably linked to the issues in the underlying construction defect suit. As a result, the terminating sanctions gave defendants no more than they would have achieved if plaintiffs' answers had been entirely favorable to the defense in failing to support the claims in the construction defect suit.
Plaintiffs persistently delayed sharing discovery with defendants, used underhanded litigation tactics, and disregarded prior court orders. On this record, we conclude that, "[i]n choosing this sanction, the court was attempting to tailor the sanction to the harm caused by the withheld discovery." (Sauer v. Superior Court, supra, 195 Cal.App.3d at p. 229.) The record supports the trial court's exercise of its discretion in imposing terminating sanctions, and plaintiffs have not met their burden of demonstrating any abuse of discretion. (Laguna Auto Body v. Farmers Ins. Exchange, supra, 231 Cal.App.3d at p. 487.)
DISPOSITION
The judgment is affirmed. Defendants are to recover their costs on appeal.
JACKSON, J.
We concur:
PERLUSS, P. J.
WOODS, J.