Opinion
A164140
11-02-2023
JANE DOE, Plaintiff and Appellant, v. EDWARD WEAMER, Defendant and Respondent.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSC2000827
Markman, J. [*]
Representing herself, Jane Doe appeals from a judgment dismissing her case after the trial court imposed terminating sanctions following her alleged failure to comply with discovery orders. Doe also challenges two of the court's other discovery rulings.
Edward Weamer has not filed a respondent's brief and asks by letter that we proceed without one. We therefore decide the appeal on the record and the opening brief. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
We reverse and remand the case for further proceedings. A trial court has broad discretion to impose discovery sanctions, but terminating or evidentiary sanctions generally requires a willful and ongoing failure to comply with a court order. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) While Doe was uncooperative with the trial court's attempts to resolve the parties' discovery disputes and move her case forward, the court failed to carefully review its orders to confirm Doe was actually in violation of them. As it turns out, Doe arguably remained in compliance with the orders the court had signed. The court abused its discretion by imposing terminating sanctions. We reject Doe's arguments concerning the court's other orders.
BACKGROUND
Doe and Weamer had a relationship between 2013 and 2014. During the relationship, Doe alleges she "was forced to have sex with [Weamer] around ten times." Doe further alleges in her complaint: "In Jul[y] 2014 [Weamer] bought round trip tickets to fly [Doe] from Los Angeles to his residence in Concord." On August 4, 2014, "around 4:00 am [Weamer] got up for work. While [Doe] was still asleep in [Weamer's] bedroom he pulled off her pants and forced himself on her." Three days later, Doe "broke up with [Weamer] and never had contact with him again."
On May 7, 2020, Doe filed the underlying civil action against Weamer. In her complaint, Doe asserts claims for sexual battery (Civ. Code, § 1708.5); gender violence (Civ. Code, § 52.4); violation of the Ralph Civil Rights Act (Civ. Code, § 51.7); interference with exercise of civil rights (Civ. Code, § 52.1); and intentional infliction of emotional distress.
A. Discovery and Motion Practice
Weamer served requests for admission and interrogatories. He sought information concerning Doe's identity, her interactions with others he claims she falsely accused of sexual assault, and her dealings with others with whom she had other legal disputes. Requests for admission sought to authenticate explicit and personal Facebook messages. Weamer also sought information about Doe's medical history and other subjects. His discovery included interrogatories directing Doe to "[d]escribe all interactions" she had with certain men and asking her to "[i]dentify all men against whom [she] made allegations of unwanted sexual contact" and to identify her mental health and other health care providers.
Doe objected to many of Weamer's requests and expressed the need for a protective order maintaining the confidentiality of personal information. In September 2020, a discovery facilitator recommended that Doe be ordered to respond to the discovery subject to a protective order.
At the time, civil litigants in Contra Costa County had to participate in the court's Discovery Facilitator Program before filing a motion to compel discovery responses. (Super. Ct. Contra Costa County, former Local Rules, rule 3.300, eff. July 1, 2020 <https://www.cc-courts.org/local-rules/docs/2020LocalCourtRules_July.pdf> [as of Nov. 2, 2023].) An assigned volunteer Discovery Facilitator held a hearing on the dispute in question and, unless it was completely resolved, would serve the parties with formal recommendations. (Id., rule 3.301(a)(3), (d)(1), (6).) The court would then consider the recommendations in connection with a subsequent discovery motion. (Id., rule 3.301(d)(9).)
Failing to reach a negotiated resolution of the discovery dispute, Weamer filed a motion to compel responses to his discovery and Doe moved for a protective order excusing her from responding. In a tentative ruling addressing scheduling issues, the court said that it had also received "an unfiled draft (proferred [sic] by plaintiff) of a protective order for the handling of confidential information, as is routinely done in cases raising privacy or confidentiality concerns." "As far as the Court can tell, the proposed confidentiality order is not the subject of any pending motion and has not been presented to the Court for action." The court expressed its "view that some such form of confidentiality order is appropriate" and "urge[d] the parties (if they haven't done so already) to meet and confer to agree on a form of order. If they cannot agree, they should take their points of disagreement to a Facilitator, and if necessary to the Court by motion."
After a hearing on December 11, 2020, the trial court granted Weamer's motion to compel and denied Doe's "mirror-image" motion for a protective order. The minute order directed Doe to serve full responses to Weamer's requests "within 30 days after service of an Order After Hearing hereon, provided that a suitable protective order has been entered by then .... If not, the discovery responses will be due ten days after entry of the protective order." The court issued $500 in monetary sanctions against Doe. It again directed the parties to meet and confer concerning the terms of a protective order "protecting the confidentiality of both sides' private information."
Negotiations regarding a protective order were not successful and Doe did not supplement her discovery responses. According to a second discovery facilitator, the parties agreed to many terms of a protective order, but disputed whether Weamer's counsel should be able to share Doe's confidential discovery responses with counsel in other cases Doe had filed. In recommendations issued on December 21, 2020, the facilitator concluded sharing could be permitted subject to Weamer's showing that the cases were sufficiently related. The parties discussed a protective order based on this recommendation, but Doe would not stipulate to one. She announced that she would appeal the order granting Weamer's motion to compel. Doe filed a petition for writ of mandate concerning that order, which this court summarily denied in January 2021. She then petitioned unsuccessfully for review by the Supreme Court.
B. The Trial Court's Sanction Orders
Weamer offered to treat Doe's discovery responses as confidential until she obtained a protective order. He also provided a revised protective order based on the one submitted to the discovery facilitator. Doe refused both offers and took no steps to obtain or to stipulate to a protective order with her preferred terms in the four months that followed the discovery facilitator's recommendation. Doe maintained that her deadline to comply with the order granting Weamer's motion to compel was 10 days after entry of a protective order. In her view, since the court had not yet entered a protective order, the proverbial clock had not started to run.
In May 2021, Weamer moved for terminating and monetary sanctions. In opposition, Doe argued the court's order granting Weamer's motion to compel was invalid because, among other reasons, no formal order had been entered after the hearing and she believed the court never ordered her to obtain a protective order.
On July 22, 2021, the trial court continued the hearing on the motion for sanctions. The record lacks a reporter's transcript of the proceedings. The tentative ruling stated that because Doe "obstructed" the entry of a protective order, "the 30 day provision applies." Presumably the trial court was referring to the deadline to comply with the discovery order in the absence of a final protective order. The court also directed Weamer to submit a formal order after hearing on the motion to compel and serve it by July 23. This tentative ruling was entered as a minute order on July 22, but was never incorporated into a formal order after hearing. The minute order warned: "In the absence of full and complete discovery responses and payment of $500 by 8/23/21 the Court is considering terminating sanctions as a result of the failure to comply with the 12/11/20 order." Also on July 22, the court denied a separate motion to compel that had been filed by Doe and ordered her to pay $2,000 in monetary sanctions in connection with her unsuccessful motion.
We augment the record on our own motion to include this minute order, as well as the trial court's October 4, 2021 and November 30, 2021 orders, which are discussed below. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
On July 23, 2021, the trial court issued a formal order after hearing adopting the December 2020 ruling granting Weamer's motion to compel. This order simply repeated the original 2020 minute order. It stated Doe must serve responses within 30 days of service of the order "provided that a suitable protective order has been entered by then .... If not, the discovery responses will be due ten days after entry of the protective order."
In August 2021, the parties filed supplemental briefs concerning the motion for sanctions. Weamer stated Doe had made no effort to provide any discovery responses or pay the two rounds of monetary sanctions ordered by the court. Doe argued the formal order granting Weamer's motion to compel required her responses within 10 days of the entry of a protective order, and no protective order had been entered. She argued that the court failed to provide legal authority for a number of its orders and promised to appeal any order issuing terminating sanctions.
On September 17, 2021, the trial court continued the hearing on the motion for sanctions again. On October 4, it issued a formal order after hearing stating, "This is not a complex matter. The Court orders are not difficult to understand. [¶] Plaintiff is clearly not in compliance with several court orders .... The matter could be dismissed based on the facts to date.
However, this Court prefers that this matter is resolved on the merits, i[f] possible.... Plaintiff is admonished to . . . bring herself into full compliance no later than 10/22/21." The court directed Doe to file a declaration "showing her compliance with the Court's orders, if any" and warned, "Failing a showing of full compliance, it is very likely the case will be dismissed, with prejudice."
Doe did not obtain a protective order or provide further discovery responses. Instead, she filed a declaration repeating her position that the order granting Weamer's motion to compel was invalid and her deadline to comply had not been triggered by the entry of a protective order. The motion for terminating and monetary sanctions came back on for hearing on November 12, 2021. The court granted it in its entirety. A formal order granting the motion followed on November 30, 2021. The court entered judgment in favor of Weamer and Doe appealed.
The court granted terminating and monetary sanctions "for the reasons stated in the moving and reply papers," without addressing the types of sanctions Weamer had sought.
DISCUSSION
Doe challenges the judgment on several grounds. She contends terminating sanctions were unwarranted because the trial court's order granting Weamer's motion to compel was invalid, she did not violate it, and if she did, her actions were justified. She also claims the order imposing terminating sanctions deprived her of due process of law. Finally, Doe argues the court erred by denying two discovery motions she filed and imposing monetary sanctions against her in connection with the second motion.
I. Governing Legal Principles
A. Discovery Sanctions
Sanctions based on the failure to comply with a discovery order typically begin with monetary sanctions, which can increase in amount. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) They end with the ultimate sanction of termination of the lawsuit. (Ibid.) If a lesser sanction fails to curb misuse, a greater sanction is warranted. (Ibid.) A trial court should attempt to tailor the sanction to the harm caused by misuse of the discovery process; it cannot impose discovery sanctions as a punishment. (Ibid.) Terminating and other nonmonetary sanctions are" 'reserved for those circumstances where the party's discovery obligation is clear and the failure to comply with that obligation is clearly apparent.'" (Moofly Productions, LLC v. Favila (2020) 46 Cal.App.5th 1, 11 (Moofly), quoting New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.)
"In general, a court may not impose issue, evidence, or terminating sanctions unless a party disobeys a court order." (Moofly, supra, 46 Cal.App.5th at p. 11.) A decision to order terminating sanctions should not be made lightly. (Id. at p. 12.) Where a violation is willful and preceded by a history of abuse, and the record shows less severe sanctions would not produce compliance with discovery rules, the court is justified in imposing the ultimate sanction. (Ibid.)
B. Appellate Review of an Order Imposing Discovery Sanctions
We generally review an order concerning discovery for abuse of discretion. (Medical Bd. of California v. Chiarottino (2014) 225 Cal.App.4th 623, 628.) We will not substitute our opinion for that of the trial court unless there has been a clear miscarriage of justice and the order "exceeds the bounds of reason." (Ibid.) The same standard applies to the trial court's broad discretion to impose discovery sanctions. (American Home Assurance Co. v. Societe Commerciale Toutelectric (2002) 104 Cal.App.4th 406, 435.) We review the trial court's factual determinations under the substantial evidence standard and infer all findings necessary to support the sanctions. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1292.)
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Appellants must "cite the particular portion of the record supporting each assertion made," Williams v. Williams (1971) 14 Cal.App.3d 560, 565, and must support each argument by citation to appropriate authority or the issue is forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Appellants who claim a finding is not supported by substantial evidence must set forth in their briefs all the material evidence on the point-not just their own evidence-or any error is deemed to be waived. (Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Finally, appellants have the burden not only to show error, but resulting prejudice, or their claim of error fails. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
II. Validity of the Order Granting Weamer's Motion to Compel
None of the grounds on which Doe attacks the order granting Weamer's motion to compel have merit. Doe claims she requested argument on Weamer's motion to compel but was disconnected from the virtual hearing after the parties finished arguing a different motion. The record is to the contrary. The trial court's minute orders state it gave the parties an opportunity to argue the motions. Doe attempts to rebut that finding by reference to emails, but they do not reveal a due process violation. Doe fails to provide an adequate record to support her assertion. Additionally, Doe had an opportunity to be heard via her briefing on the discovery motion on multiple occasions, which culminated in her unsuccessful petition for a writ on the discovery order to this court and to the California Supreme Court.
We have considered all of Doe's assertions but address only those meriting discussion. (Kirchmeyer v. Helios Psychiatry Inc. (2023) 89 Cal.App.5th 352, 364.)
Doe further argues the discovery order was invalid because Weamer failed to prepare a formal order after hearing. The lack of an order after hearing certainly presents challenges to enforcement of the order. As we will explain below, those challenges are part of the reason why we vacate the judgment. The order itself, however, was valid. Weamer's counsel ultimately did prepare an order, which the court entered in July 2021.
Doe claims the court imposed monetary sanctions without making findings required by Code of Civil Procedure section 2023.050. We reject this argument because the trial court did not impose sanctions based on section 2023.050, which concerns requests for the production of documents. Weamer's motion concerned responses to interrogatories and to requests for admission. While Doe could have produced documents sufficient to respond to some or perhaps all of the interrogatories, she has not identified an error in the sanctions order.
Doe further argues the trial court erred by permitting discovery concerning her relationships with third parties without requiring Weamer to file a noticed motion pursuant to Code of Civil Procedure section 2017.220. We assume, without deciding, this was in error. However, Doe fails to show prejudice. The trial court made its order compelling Doe to respond to Weamer's requests after a noticed motion, as the statute requires, and after the court also heard and considered Doe's motion for a protective order excusing her from responding to the same discovery. We presume the court made the required finding of good cause when it ordered Doe to respond to the interrogatories she identifies, which concern her interactions with specific individuals and the identities of people she has accused of harassment or unwanted sexual contact. These interrogatories pertain to what Weamer contends to be a history of disputes with, and false accusations against, former romantic partners-which would be relevant to Doe's credibility if proven. (See Evid. Code, § 783.) Doe fails to show there was no good cause for the specific discovery ordered.
Finally, Doe argues these and other requests concerning her medical history were irrelevant, burdensome, harassing, and/or duplicative for various reasons. Her arguments fail to persuade us that the trial court abused its discretion in permitting this discovery subject to a protective order to preserve confidentiality.
Much of Doe's argument pertains to the admissibility of evidence at trial rather than whether it is subject to discovery. It is well-settled that admissibility is not a prerequisite to discovery, which need only be reasonably calculated to lead to admissible evidence. (Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1490-1491.)
In addition to the categories of personal information specifically challenged by Doe in her opposition to the discovery motion in the trial court, Weamer's discovery also sought simple, basic information. That information included confirmation of Doe's identity and the identities of her health care providers, the need for which we presume the court balanced against Doe's privacy interests. Doe also fails to support her assertion that the trial court "gave [Weamer] a green light to explore" her entire "medical history in the past ten years."
III. Terminating Sanctions Were an Abuse of Discretion
Doe contends that even if the order granting Weamer's motion to compel was valid, her compliance was only required "with the condition of [the entry of] a protective order." Since no protective order ever issued, Doe insists she never violated the order granting Weamer's motion to compel.
We are compelled to agree with Doe. Based on the record, the trial court believed that its discovery order, and Doe's history of non-compliance with it, were far more clear than they were in reality.
The court conditioned Doe's obligation to supplement her discovery responses on the entry of a protective order and then never entered one. The trial court's December 11, 2020 discovery order went undocumented until July 23, 2021. Both in December 2020 and in July 2021, the order can be fairly read to condition Doe's compliance on the entry of a protective order.
Based on the minute order of the trial court's July 22, 2021 hearing on Weamer's motion for sanctions, it appears that the trial court contemplated a firm deadline by which Doe had to supplement her discovery responses-with or without entry of a protective order. Further, the tentative ruling and minute order reflect the court's view that Doe "obstructed" the entry of a protective order. The trial court may have even said so during the hearing, and perhaps admonished Doe concerning her compliance, but we lack a reporter's transcript to know for certain.
None of whatever discussion may have transpired ever made it into an actual written order. Instead, it appears that counsel for Weamer submitted, and the court signed, a form order after hearing that was virtually identical to the tentative ruling that the trial court had issued back in December 2020. In other words, the day after the July 22 hearing at which the trial court may have set a clear deadline for Doe to comply with its discovery orders, the order after hearing signed by the court instead reverted to the original, nebulous deadline set by the December 2020 discovery ruling. The order said that Doe "must serve full, verified responses to all contested requests for admission, form interrogatories, and special interrogatories, within 30 days after service of an Order After Hearing hereon, provided that a suitable protective order has been entered by then (see Line 18). If not, the discovery responses will be due ten days after entry of the protective order." Thus, Doe again had reason to believe that she could still refuse to comply with the discovery order until after the entry of a protective order. The trial court never entered an order documenting the July 22, 2021 sanctions hearing. Again, the July 23, 2021 order after hearing documented the December 2020 discovery hearing and not the July 22 sanctions hearing.
The reference to "Line 18" is to the tentative ruling on a matter heard on December 11, 2020, which discussed the possible form of a protective order based on recommendations issued by a discovery facilitator on September 8, 2020. A second discovery facilitator made further recommendations concerning the form of a protective order on December 21, 2020.
The ambiguous timing condition from the December 2020 hearing, repeated in the July 23, 2021 order after hearing, thus remained in place as the court continued its march towards its November 30, 2021 order imposing terminating sanctions. On October 4, 2021, the court issued an order stating Doe "is clearly not in compliance with several court orders," but the order failed to identify these orders or the manner in which Doe had violated them. The court observed, "This is not a complex matter" and its orders "are not difficult to understand," commanding Doe to "bring herself into full compliance no later than 10/22/21."
Weamer's papers, which supplemented his earlier briefing on his motion for terminating sanctions, discuss multiple court hearings. As for orders violated by Doe, however, Weamer's counsel simply referenced the December 2020 order, which was set out in the July 23, 2021 order after hearing, and the order to pay monetary sanctions resulting from Doe's unsuccessful motion to compel.
We agree with the trial court's October 2021 observation that this is not a complex matter. But the discovery statutes require an actual failure to obey an order compelling discovery before the court may impose terminating sanctions. (See Moofly, supra, 46 Cal.App.5th at p. 11.) The order must make the responding party's discovery obligation clear. (Ibid.) Here, the court ordered Doe to provide discovery responses "ten days after entry of the protective order." This never occurred. In none of the court's written orders does it ever say that Doe must supplement her discovery responses in the absence of a protective order. Instead, the orders refer back to the trial court's earlier orders-all of which include language that could objectively be read to require compliance only after entry of a protective order.
A number of potential solutions were available to Weamer and the court. The court made a discovery order in December 2020, and it could have entered a protective order at the same time. Or it could have set a clear deadline for entry of a protective order, or for further motion practice that would result in the entry of the order. At the July 22, 2021 sanctions hearing, the court could have either entered a protective order or else issued a written order with an unambiguous deadline for Doe to supplement discovery responses in the absence of one. The same is true at the further sanctions hearings in September and in November. None of these things happened. As a result, the trial court imposed terminating sanctions based on a still-ambiguous record.
The protective order was not a mere pretext for Doe to avoid compliance with her discovery obligations. This case involves allegations of sexual battery that implicate both parties' private and sensitive information. Weamer's requests for admission seek confirmation or authentication of portions of Facebook messages that are private and frequently explicit. From the beginning, the parties, the discovery facilitators, and the court understood that discovery would be subject to a protective order establishing appropriate safeguards for such information. The record reflects that Doe attempted to have such an order entered as early as June of 2020. While some of Doe's concerns regarding the draft form protective order that had been circulated for discussion during the proceedings before the discovery facilitators may have been objectively unreasonable, the court should have simply resolved them and then signed and filed an appropriate protective order.
The record does not indicate that Doe violated other orders justifying terminating sanctions. The order granting terminating sanctions incorporated by reference "the reasons stated in the moving and reply papers." Those papers rely on Doe's failure to "provide responses to discovery requests that were the subject of [Weamer's] prior motion to compel" and to "pay Defendant $500 in sanctions." Again, Doe did not violate a clear order to provide responses addressed by Weamer's motion to compel. And "a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified." (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)
Weamer's papers also mention Doe's assertion of meritless objections, inadequate meet and confer efforts, and appeals, among other things. None of these actions, however, violated a clear order by the court or otherwise independently justified terminating sanctions. Egregious misconduct that "materially impair[s] the court's ability to ensure the orderly administration of justice" can justify nonmonetary sanctions even absent a prior order compelling discovery. (New Albertsons Inc. v. Superior Court, supra, 168 Cal.App.4th at pp. 1426, 1431.) But that was not the basis for the court's order here, and Doe's failure to cooperate did not rise to that level.
As reflected by his letter to this court, Weamer is understandably distressed by how this action has proceeded. In addition to Doe's general lack of cooperation, the series of ambiguous orders that issued below has contributed to a lack of progress in resolving this matter on the merits. We also understand that litigants representing themselves and taking unreasonable positions in discovery (or otherwise) can present serious case management challenges for the trial court. Still, "strict standards must be met before terminating sanctions are appropriate." (Moofly, supra, 46 Cal.App.5th at p. 12.) Those standards were not satisfied here.
In sum, the trial court abused its discretion by issuing terminating sanctions where Doe had not yet violated an order imposing an unambiguous deadline to provide supplemental responses. (See Moofly, supra, 46 Cal.App.5th at p. 11.) Given this conclusion, we need not address Doe's remaining arguments, but for those concerning the trial court's rulings on her own motions to compel.
IV. Other Discovery Orders Were Not an Abuse of Discretion
Doe contends the trial court erred by denying her 2020 motion to compel as to two of her discovery requests. We have considered these arguments, but find the court's order was well within its discretion. The court was also within its discretion to deny Doe's 2021 motion to compel as to the requests she raises on appeal, which relate to the authenticity of messages as to which Weamer offered appropriate stipulations and other requests that were apparently duplicative. Doe's arguments on appeal are not persuasive, and she fails to provide legal authority or record citations showing the court's ruling was in error considering all the material evidence before it.
Finally, Doe fails to show the trial court abused its discretion by awarding $2,000 in monetary sanctions in connection with the 2021 motion. A court will impose monetary sanctions against a party who unsuccessfully moves to compel further responses to interrogatories or requests for admission unless it finds the party acted with substantial justification or other circumstances make sanctions unjust. (Code Civ. Proc., §§ 2030.300, subd. (d), 2033.290, subd. (d).) Doe fails to show her motion was substantially justified. While she argues on appeal that the sanctions were unjust and unconstitutionally excessive given her financial condition, she did not raise this issue when the sanctions were imposed, so her argument is forfeited. (People v. Trujillo (2015) 60 Cal.4th 850, 856.)
DISPOSITION
The judgment is reversed. The matter is remanded with directions to the trial court to vacate the judgment and its order granting Weamer's motion for terminating and for monetary sanctions. After giving the parties an opportunity to be heard concerning the form of a protective order, the court is directed to enter a standard protective order governing the confidentiality of information exchanged during discovery and to issue a further order setting a firm and final deadline for Doe to comply with the court's discovery orders to date. If Doe then fails to timely comply, Weamer may again pursue terminating sanctions. The other discovery orders and orders imposing monetary sanctions addressed by this appeal are affirmed.
In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: Stewart, P.J., Richman, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.