Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. RCV088816 Ben T. Kayashima, Judge. Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and Caroline Chan for Plaintiff and Appellant.
Fox Rothschild and Michael Eidel for Defendant and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Plaintiff and appellant Altawood, Inc. (Altawood) appeals from judgment of dismissal of its complaint for breach of contract and other claims against defendant and respondent AmeriGas Propane, L.P. (AmeriGas). Altawood contends the prior orders upon which the trial court based a terminating sanction were invalid, and Altawood had been unable to respond to burdensome discovery within the short timeframe fixed by the court. Altawood further contends the trial court erred in denying its application for a protective order and in denying its motion for new trial. / We conclude that Altawood has waived any challenge to the validity of the underlying discovery orders, and the trial court did not abuse its discretion. Finding no error, we affirm.
Altawood denominated its motion a motion for reconsideration under Code of Civil Procedure section 1008. Because judgment had entered before the hearing, the trial court deemed the motion a motion for new trial, and we will therefore refer to it as such in this opinion.
At oral argument, Altawood contended that its former counsel did not have authority to bind Altawood in discovery matters without its knowledge and consent. Although Altawood’s appellate counsel represented to the court that the issue had been raised in its briefs, we have searched the briefs in vain for any allusion to such a point, nor do we perceive that such a point was raised by implication. Rather, counsel’s argument appears disingenuous in the extreme. It is well established that we need not consider an argument raised for the first time at oral argument. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226 [Fourth Dist., Div. 2].) We see no reason to depart from that rule in the present case.
II. FACTS AND PROCEDURAL BACKGROUND
In July 2005, Altawood, a manufacturer of aerosol paint, sued AmeriGas, its supplier of aerosol propellant, for breach of contract, fraud, misrepresentation, and breach of the implied covenant of good faith and fair dealing. Altawood alleged that AmeriGas had supplied a defective aerosol propellant and had substituted “normal butane” for isobutane, and that the substitution had caused malfunctions in Altawood’s products, which had led to customer complaints and a product recall. Altawood sought more than $2 million in compensatory damages as well as punitive damages and other relief.
After conducting initial discovery, Altawood filed a first amended complaint (FAC) in October 2006. In the FAC, Altawood alleged AmeriGas had increased the percentage of normal butane in the aerosol mixture, decreased the isobutane percentage, and increased the sulfur content. In the FAC, Altawood added claims for negligence, negligent failure to warn, strict liability, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty arising from course of dealing and usage of trade.
On October 5, 2006, AmeriGas served a third set of requests for inspection and production of tangible things. The requests sought six unused spray paint cans from (1) each batch or lot of spray paint that Altawood contended was defective, and (2) each batch Altawood manufactured since January 1, 2003. The requests also sought: (1) a list of spray paint retains (liquid paint not yet in aerosol cans), including all information that appeared on the label or was otherwise available; (2) all documents supporting and relating to Altawood’s claims; (3) all documents containing contact information for each customer who returned defective product; and (4) all documents concerning returned products. After obtaining a 30-day extension to respond, Altawood served responses on December 7, 2006. Altawood asserted various objections to production of spray paint cans, supplied some statistics regarding the number of batches of spray paint produced since 2003, and produced only one can from each batch for testing. Altawood claimed it did not have a list of the retains from each batch produced, objected on various grounds to the request for production of a list of information about retains, and stated it would produce the actual retains because no list existed.
In July 2007, AmeriGas filed a motion to compel further responses to its third set of requests for production. AmeriGas supported the motion with a declaration of its expert witness, who stated that at least two unused cans were needed from a given batch to conduct testing, because once a can was opened for testing, it could not be reused for additional testing.
On August 16, 2007, the trial court granted AmeriGas’s motion. The court gave Altawood 30 days to produce “an accurate record of the sample inventory by reference to the production records.” The order provided that if there were at least two cans of a sample batch which AmeriGas needed to test, the samples would be split between the parties, up to a maximum of six cans per side. If there were less than two cans, the parties should enter into a protective order or have independent testing done.
On September 26, 2007, Altawood filed an ex parte application to continue the trial, which was then set for November 13, 2007. In support of the application, Mr. Herbert Gleicke provided a declaration stating he was the president of Altawood and the person most knowledgeable about the defective spray paint cans, the manufacturing process, and the testing of allegedly defective cans. Mr. Gleicke declared that on May 10, 2007, he had begun to experience eye pain and problems with his vision that made it nearly impossible for him to read, write, or drive, and therefore made it unreasonably difficult to review documents, prepare documents, participate in meaningful depositions in which he was required to review documents, or to assist Altawood’s attorneys and expert witnesses with trial preparation. He stated an ophthalmologist had diagnosed ruptured blood vessels in both eyes, and that his condition might improve over time. Exhibits to his declaration indicated he had been referred to The Center for The Partially Sighted and the Braille Institute. He had last been examined on September 10, 2007, and had been diagnosed with macular degeneration and nuclear sclerosis. Altawood’s counsel declared he had learned of Mr. Gleicke’s condition on August 31, 2007. However, Altawood did not then seek a discovery protective order on the basis of Mr. Gleicke’s medical condition.
On September 25, 2007, AmeriGas informed Altawood it would not oppose an application for continuance of trial based on Mr. Gleicke’s condition. AmeriGas requested that Altawood provide complete inventories, pursuant to the court order, with the information for the time periods requested and ordered, and incorporate the inventories into a verified response. AmeriGas also requested Altawood to provide a proposal for the logistics of testing the samples. The trial court set a new trial date of August 11, 2008.
On September 21, 2007, AmeriGas propounded a second set of special interrogatories. The interrogatories requested contact information for customers who had not paid Altawood because of complaints about allegedly defective spray paint, the amount of spray paint ordered or delivered to each customer, the amount of paint returned, the batch numbers, colors, and production dates for the unpaid spray paint, the amount of money unpaid, the amount of damages claimed, whether Altawood had retained the paint, whether the returned paint or samples from the defective batches had been tested, the details and results of that testing, any other amounts claimed as damages, and an identification of documents relating to the interrogatories. The same day, AmeriGas propounded a fifth set of requests for production of documents seeking production of all documents identified in response to the second set of interrogatories.
Responses to those discovery requests were due on October 22, 2007, but Altawood failed to serve any responses. On November 12, 2007, AmeriGas requested Altawood to provide responses without objections by November 16. AmeriGas granted several extensions of time to serve responses up to January 28, 2008, but Altawood failed to provide responses.
On February 25, 2008, AmeriGas filed motions to compel responses to the second set of special interrogatories and to the fifth set of requests for production. AmeriGas contended Altawood had failed to produce a complete inventory of paint samples pursuant to the trial court’s August 16, 2007, order and had stated it could give no firm date for production. AmeriGas further contended Altawood had failed to provide responses to the second set of special interrogatories and to the fifth set of requests for production. AmeriGas also filed a motion seeking terminating sanction or, in the alternative, evidence or issue sanctions and monetary sanctions.
Altawood filed oppositions to the motions, claiming that its problems in responding to discovery and complying with the trial court’s order had resulted from Mr. Gleicke’s poor health and that Altawood intended on “fully complying with any and all discovery obligations prior to the hearing on this matter.” Altawood stated that the discovery AmeriGas sought “appear[ed] to be proper and within the permissible scope of discovery,” and that Altawood did not object to the discovery requests. Altawood did not seek a protective order at that time. Altawood asked the court to deny the motions to compel to “the extent that discovery has been provided prior to hearing on this motion....”
In response to AmeriGas’s motion for terminating sanctions, Altawood stated it had “attempted to comply in good faith with the Court’s previous discovery order by timely providing a list of batches for which it had multiple spray cans for testing and, thereafter, providing a list of all batch runs for which it has a single can.” Again, it stated its problems with providing discovery were because of Mr. Gleicke’s health issues. Altawood “concede[d] some failures” in its discovery responses.
On April 7, 2008, the trial court granted AmeriGas’s three motions. The orders gave Altawood 20 days to (1) file responses without objection to the second set of interrogatories, (2) file responses without objection to the fifth set of requests for production; and (3) produce an inventory for the entire time period. The trial imposed a total of $2,000 in sanctions payable to AmeriGas on or before April 17 and April 7, 2008.
On May 2, 2008, AmeriGas moved for terminating and monetary sanctions on the grounds Altawood had failed to produce the inventory of spray paint available for testing, in violation of the court’s earlier order, had failed to provide responses to the special interrogatories and requests for production, and had failed to pay the sanctions as ordered. Two court days before the hearing on the motion, Altawood filed an opposition. Altawood conceded it had not complied with the prior discovery orders because of Mr. Gleicke’s continuing vision problems and because of the loss of its general manager, “the only other person at Altawood qualified to assist with the discovery requests.” Altawood represented it had completed the inventory of products available for testing and would supply that inventory to AmeriGas before the hearing. Altawood concurrently filed an ex parte application for a protective order seeking an unspecified amount of additional time to respond to discovery because of Mr. Gleicke’s vision problems.
At the hearing on May 27, 2008, the trial court stated it had reviewed the whole file in addition to the current motion papers and opposition filings. The trial court stated it did not find Altawood’s counsel credible, that Altawood had failed to support its contentions in its filings, that Altawood had not complied with prior discovery orders, and that Altawood’s conduct had been a pattern in the case. The trial court granted the motion for terminating and monetary sanctions. On June 10, 2008, the trial court entered judgment in favor of AmeriGas.
On June 11, 2008, Altawood’s new counsel filed a motion for reconsideration of the May 27, 2008, order. Altawood claimed there had been a miscommunication regarding the payment of monetary sanctions; discovery responses had since been provided; its owner was permanently disabled; and it had created a plan for avoiding future problems with a power of attorney. Altawood attached a copy of its new counsel’s June 11, 2008, letter to AmeriGas’s counsel, which had enclosed a $2,000 check for payment of the sanctions. Altawood asserted it had delivered to its former counsel a $2,000 check dated April 30, 2008, to pay the sanctions, but because of a misunderstanding, the funds had been applied to its former counsel’s latest invoice rather than transmitted to AmeriGas. Altawood claimed it had not discovered that error until early June. Nonetheless, the stub for the April 30 check expressly stated it was intended to be payment for the former counsel’s April 3 invoice.
In support of its motion for reconsideration, Altawood also provided the declaration of Mr. Gleicke, which stated his office staff had been reduced to three people. He recounted his eyesight problems but stated that some time after the April 7, 2008, court orders, he had been able to supervise his office staff for “hundreds of hours” to gather the required information and documents. He stated it had been impossible to comply with the 20-day deadline in the court orders, but that he had sent the inventory documents to his former counsel in late May 2008, and by May 26 or 27, had finished compiling all the additional documents and customer information required.
Altawood also supported its motion by the declaration of Loren Miles, who stated he was Mr. Gleicke’s son and “sole trustee.” Mr. Miles stated that in late 2006 or early 2007, he had begun assisting Altawood in responding to the litigation demands on an “‘as needed’” basis. After learning in June 2008 that Mr. Gleicke’s vision problems would be permanent, Mr. Miles had obtained a power of attorney to “direct, manage, supervise, and do all acts reasonably necessary to participate as a litigant in this action....”
On July 22, 2008, the trial court denied Altawood’s motion, deeming it a motion for new trial. The trial court stated it was denying the motion because Altawood’s failure to comply with court-ordered discovery over many months had been prejudicial to the defense of the case, and the evidence Altawood provided in support of its motion was not newly discovered evidence because it could, with reasonable diligence, have been produced before the May 27 hearing.
III. DISCUSSION
A. Judgment of Dismissal
Altawood contends it was entitled to have the judgment of dismissal reversed because the prior orders upon which the terminating sanction was based lacked validity; and staffing problems and the physical disability of its owner made it unable to respond to burdensome discovery within the short timeframe fixed by the court.
1.Standard of Review
Management of discovery lies with the sound discretion of the trial court, and we review the trial court’s decisions on discovery matters for abuse of discretion. (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.)
2. Validity of Prior Order
A prerequisite to the imposition of sanctions is a party’s failure to comply with a valid discovery order. (In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1476.) AmeriGas contends that Altawood has waived any argument that the prior discovery orders were invalid because Altawood never raised any such argument in the trial court. (See Barker v. Brown & Williamson Tobacco Corp. (2001) 88 Cal.App.4th 42, 50 [when a party failed to raise an issue below, it was deemed waived for purposes of appeal].)
Altawood argues it did not waive a challenge to the prior discovery orders because its appeal from a final judgment was based on the prior intermediate discovery orders. To support that argument, Altawood cites only Code of Civil Procedure section 906, which allows a court on appeal from a final judgment to review intermediate rulings that involve the merits or affect the substantial rights of a party, and Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784, 785-786, which stands for the proposition that interlocutory discovery orders are not appealable. Altawood also contends the three cases AmeriGas cited in support of its waiver argument (Barker v. Brown & Williamson Tobacco Corp., supra, 88 Cal.App.4th 42; Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247; and Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202) are distinguishable because they dealt with different factual situations.
The issue before us is not, as Altawood appears to assert, whether an interlocutory or intermediate order is appealable. Rather, the issue is whether Altawood raised any challenge in the trial court to the validity of the underlying orders. Altawood has failed to provide any citation to the record showing that such a challenge was ever made. While we agree with Altawood’s unremarkable proposition that “[t]here must be a failure to comply with a valid discovery order” (see In re Marriage of Economou, supra, 224 Cal.App.3d at p. 1476), nothing in that case relieves a party from the obligation of raising the purported invalidity of an order in the trial court rather than asserting it for the first time on appeal. The cases AmeriGas cited all support the general proposition, equally applicable in this case, that errors not asserted in the trial court are waived or forfeited for purposes of appeal. (Barker v. Brown & Williamson Tobacco Corp., supra, 88 Cal.App.4th at p. 50 [the plaintiff waived the issue of delayed accrual of the limitations period by failing to raise the issue below]; Phillippe v. Shapell Industries, supra, 43 Cal.3d at p. 1256 [a party may not raise a new theory for the first time on appeal]; and Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at p. 1227 [a party waived error by failing to object to improper argument of counsel in the trial court].)
Although Altawood argues the court’s April 2008 order was invalid because AmeriGas’s discovery requests were overbroad and burdensome, Altawood failed to serve a timely response to the second set of interrogatories or the fifth set of document requests. In the absence of a court order granting relief, a party who fails to serve timely responses to discovery requests waives the right to object to the requests. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a)); Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 272-274.) Altawood therefore waived any challenges to those discovery requests on the ground they were overbroad and burdensome.
Moreover, Altawood opposed AmeriGas’s motion to compel responses to the second set of special interrogatories and to the fifth set of requests for production on the grounds that:
“1. ALTAWOOD’S problems with providing discovery are mainly the result of the health issues of its principal Herb Gleicke and not the result of any attempt to prejudice or thwart AMERIGAS’ efforts in obtaining legitimate discovery.
“2. ALTAWOOD intends on fully complying with any and all discovery obligations prior to the hearing on this matter.” In its memoranda of points and authorities in support of the oppositions, Altawood expressly stated, “ALTAWOOD DOES NOT OBJECT TO THE DISCOVERY REQUESTS. [¶] The discovery sought by this motion appears to be proper and within the permissible scope of discovery. ALTAWOOD’S failures to date arise from the disability of its principal, Herb Gleicke. There is no bad faith or dilatory purpose to the delay.”
It is disingenuous in the extreme for Altawood now to claim that the discovery requests were overbroad and burdensome. By failure to file timely responses and by express admissions in its oppositions to the motions to compel, Altawood has waived any challenge to the discovery on those grounds.
3. Impossibility of Compliance
Altawood further argues that it was impossible for it to comply with the trial court’s April 2008 order within the 20-day time frame the trial court allowed because Mr. Gleicke’s deteriorating vision made it impossible for him to review documents and assist counsel with the litigation and because Altawood had been having financial difficulties that led to a reduction in its workforce.
While we fully sympathize with Mr. Gleicke for his serious vision difficulties, the record shows that his vision problems began in May 2007. Although he initially hoped his condition might improve over time, it clearly had not improved during the year before the trial court granted the motion for terminating sanctions. During that time, it was incumbent on Altawood to formulate an effective plan for moving forward with the litigation it had commenced. Instead, with only three months remaining before the scheduled trial date, Altawood belatedly sought a protective order delaying discovery for a further unspecified time. Moreover, Altawood initially attributed its failure to provide discovery to Mr. Gleicke’s vision problems.
In its May 2008, opposition to AmeriGas’s motion, Altawood stated its general manager had left the company in March. Altawood described the general manager as “the only other person at Altawood who knows enough about the case to assist with responding to discovery.” However, Altawood never explained why that general manager had not been able to provide information in responses to discovery between May 2007 and March 2008; rather, Altawood had previously claimed only that Mr. Gleicke’s vision problems had prevented such responses.
Finally, in its oppositions to AmeriGas’s motions to compel responses, Altawood represented that it “intend[ed] on fully complying with any and all discovery obligations prior to the hearing on this matter.” Based on that representation, the 20-day deadline the trial court imposed after the hearing was eminently reasonable.
B. Denial of Motion for Protective Order
On May 23, 2008, Altawood applied ex parte for a protective order seeking an unspecified amount of time to respond to AmeriGas’s discovery requests. Altawood contends the trial court erred in denying its application because Altawood’s owner, who was the person most knowledgeable about the case, was legally blind and because Altawood had staffing problems that prevented it from responding to the discovery requests.
1. Standard of Review
Whether or not to impose a protective order is a discretionary decision for the trial court, and we review that decision under the deferential abuse of discretion standard. (See Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881.)
2. Analysis
Altawood complains that the trial court ignored the application and never ruled on the application. However, it was Altawood’s burden to “‘make some appropriate effort’” to obtain a ruling, and the issue may be deemed waived or abandoned for its failure to do so. (See Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 712-713 [motion for new trial].) Moreover, in granting AmeriGas’s motion for terminating sanctions, the trial court impliedly denied the application. (See, e.g., Shafer v. Los Angeles County Sheriff’s Dept. (2003) 106 Cal.App.4th 1388, 1402, fn. 6.)
C. Denial of Motion for Reconsideration of Terminating Sanction
Altawood contends the trial court erred in denying its motion challenging the terminating sanction because the evidence showed a miscommunication regarding the delivery of payment of monetary sanctions; discovery responses had been provided; its owner was permanently disabled; and it had created a plan for avoiding future problems with a power of attorney.
1.Standard of Review
Here, the trial court deemed the motion a motion for new trial. The trial court’s ruling on such a motion is reviewed for abuse of discretion. (See Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)
2. Additional Factual Background
Altawood moved for reconsideration on the grounds (1) it had belatedly discovered that the $2,000 it had sent to its counsel was mistakenly applied toward unpaid fees instead of being used to pay the sanctions; (2) it had complied with all the previous discovery orders and had finished compiling documents and customer information the day before or the day of the hearing on the request for the terminating sanction, but had been unable to reach its counsel to inform him of that fact; (3) the permanent nature of Mr. Gleicke’s condition was not known until more than a week after the terminating sanction was imposed; and (4) Altawood had given Mr. Miles a power of attorney to direct and supervise the litigation.
The trial court deemed the motion a motion for new trial. The trial court found that although Altawood proffered evidence as newly discovered, all of that evidence could, with reasonable diligence, have been discovered and produced at or before the May 27, 2008, hearing.
3. Analysis
First, Altawood contended it had belatedly discovered that the money it had sent its counsel to pay the earlier sanctions order had mistakenly been applied towards attorney fees. However, substantial evidence supports an implied finding that Altawood’s assertion was untrue. First, on its face, the $2,000 check bore the date of April 30, 2008, three days after the sanctions were due. Second, Altawood’s check stub stated the check was for partial payment of its former counsel’s April 3, 2008, invoice. Third, the check was made payable to the former counsel, not to AmeriGas, AmeriGas’s counsel, or a client trust account. Moreover, in ruling on the motion for new trial, the court stated that it did not appear that Altawood’s failure to pay sanctions was the sole basis for imposing the terminating sanction. Rather, the terminating sanction was based on Altawood’s “failure over months to comply with Court-ordered discovery, which was... at least prejudicial to the defense in a case that was filed in July of 2005.”
Second, Altawood contended it had complied with all of the prior discovery orders after the May 27, 2008, order. To support its opposition to the motion for new trial, AmeriGas’s counsel provided a declaration that stated, “On May 27, 2008, after the 8:30 a.m. hearing on AmeriGas’ Motion for Terminating and Monetary Sanctions had concluded, Plaintiff’s counsel... handed me a box of papers in the hallway after I had left the Courtroom.” Even accepting for purposes of argument that Altawood had in fact complied with the previous discovery orders (a fact that AmeriGas disputes), Altawood has failed to explain why the documents and discovery responses could not, with due diligence, have been presented earlier.
Third, Altawood contended it did not learn until June 9, 2008, that Mr. Gleicke’s condition was more severe, debilitating, and irremediable than Altawood had originally believed. However, Dr. Boyer’s report, which Altawood filed in support of its motion for new trial, stated that Mr. Gleicke had been diagnosed with “wet age-related macular degeneration, vitreous hemorrhage, and nuclear sclerosis” in October 2006. Mr. Gleicke had had surgery for a detached retina in November 2007 and January 2008. At an examination on May 16, 2008, he had only light perception in his right eye and could count fingers with his left eye at a distance of four feet. The trial court found, based on declarations Altawood had filed in September 2007, in support of an ex parte application for an order continuing the trial, that Altawood had long been aware of Mr. Gleicke’s eye conditions. The court stated that although Dr. Boyer’s report could not have been presented to the court in May 2008 because it did not yet exist, the information contained in the report could, with reasonable diligence, have been produced at the May 27, 2008, hearing.
Finally, Altawood contended it had given a power of attorney to Mr. Miles after the May 27, 2008, order. The trial court found that although the specific document did not exist as of May 27, the power of attorney could have been obtained with reasonable diligence before that date. Moreover, Mr. Miles’s declaration established that he had assisted Altawood in the litigation on an “‘as needed’ basis” as early as December 2006. A declaration of Altawood’s counsel filed on March 2008 in opposition to AmeriGas’s motion for terminating sanctions stated that Mr. Miles had been “assisting with the litigation due to [Mr. Gleicke’s] health condition.”
The record amply supports the trial court’s conclusion that Altawood could have produced the same evidence at the hearing on the motion for terminating sanctions had it acted with reasonable diligence.
III. DISPOSITION
The judgment is affirmed. Costs are awarded to Respondent.
We concur: RICHLI J., GAUT J.