Opinion
A100326.
7-30-2003
BERNADETTE BARDEN et al., Plaintiffs and Appellants, v. THE PERMANENTE MEDICAL GROUP, INC., Defendant and Respondent.
Bernadette Barden and Maureen Coleman, and their attorney, Dorothy Guillory, appeal from the amended judgment in favor of The Permanente Medical Group, Inc. on Bardens and Colemans claims of sex discrimination and retaliation. Respondent obtained summary judgment based on admissions Barden and Coleman were deemed to have made when they failed to provide verified responses to requests for admissions. Barden and Coleman contend that it was an abuse of discretion to grant respondents motions to deem the matters admitted, and thus that the judgment based on the admissions must be reversed. Guillory along with Barden and Coleman also challenge sanctions imposed on other discovery motions. We affirm.
I. BACKGROUND
On March 22, 2001, respondent served eight discovery requests, four to each of Barden and Coleman: requests for admissions; interrogatories; requests for production of documents; and requests for statements of damages. Respondents counsel sent attorney Guillory letters dated May 2, May 14, June 4, June 5, and June 7, 2001, seeking the requested discovery. Guillory signed and served unverified responses for Barden and Coleman dated June 8, 2001, to the requests for admissions. On June 14, 2001, respondent filed motions to establish admissions by Barden and Coleman, and motions to compel the six other discovery requests. Sanctions of $ 1,263 were sought in each of the eight motions.
Insofar as it appears from the record, appellants filed nothing in response to the motions apart from a declaration by Guillory. In it, Guillory said that Barden was unable to respond to discovery requests because she was undergoing radiation and chemotherapy for cancer, and that Coleman was on medication, including Prozac, that "interfered with her ability to be responsive to discovery."
When the motions were heard on July 12, 2001, the court asked Guillory whether Barden or Coleman "has any doctor who says they cant read a document, they cant sign a document," and Guillory replied, "no, I dont have a doctor who says that at this point, only the client saying they cant deal with discovery." The court found Guillorys declaration "simply not enough" to establish good cause for the discovery defaults, and stated: "I understand Mrs. Bardens situation undergoing chemotherapy. But even at that, counsel is entitled to some explanation that says that, in fact, a doctor or someone saying that she simply cannot deal with any of these issues because there are degrees of chemotherapy." Guillory replied, "I understand that," and the court said, "I am afraid with this record, I have to grant each of these requests."
Orders were filed in September 2001 granting the motions for admissions, and awarding sanctions, jointly and severally, against Barden and Guillory, or Coleman and Guillory, on most of the other motions. Appellants appendix includes four awards, three against Coleman and Guillory for a total of $ 3,789, and one against Barden and Guillory for $ 1,263; respondents appendix includes an additional sanctions order against Barden and Guillory for $ 1,263.
Based on the admissions, respondent moved for summary judgment in January 2002. Guillorys declaration in opposition to the summary judgment motion reiterated her understanding that Coleman had been unable to respond to discovery because she was on Prozac, and indicated that "only recently has Ms. Barden given me authorization to obtain a declaration from her oncologist concerning her condition." The motion for summary judgment was heard on February 21, 2002, and granted by order filed March 11, 2002.
II. DISCUSSION
A. Admissions
Barden and Coleman argue that it was an abuse of discretion to grant the admissions motions. However, Barden and Coleman did not serve verified responses to the requests for admissions (Code Civ. Proc., § 2033, subd. (g) [party must respond under oath]), and where proper responses are not filed before the hearing on a motion for admissions, " the court has no discretion [under subdivision (k)] but to grant the admission motion. " (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1551 [italics omitted], disapproved on another point in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12, 987 P.2d 727; accord, id. at p. 978 [failure to serve verified response before hearing "results in automatic entry" of deemed admitted order].) Accordingly, the abuse of discretion argument fails.
Although subdivision (k) " operates in a completely nondiscretionary manner " (Allen-Pacific, Ltd. v. Superior Court, supra, 57 Cal.App.4th at p. 1551), parties with good cause for failing to properly respond to a request for admissions are not without a remedy. They can, among other things, move for a protective order under subdivision (e). (See Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1583, disapproved on another point in Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983, fn. 12.) Since Barden and Coleman never moved for a protective order, their reliance on the Brigante case, where the availability of that remedy was considered, is misplaced.
Even if Guillorys declaration in opposition to the admissions motions could have been construed as a motion for a protective order (see Allen-Pacific, Ltd. v. Superior Court, supra, 57 Cal.App.4th at p. 1556 [opposition to admissions motion can be treated as request for protective order]), the court would have been well within its discretion in denying that motion (see Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175 [noting courts wide discretion in discovery matters]). The court could reasonably require something more than counsels declaration to establish Bardens and Colemans medical incapacity to respond to discovery. (Subd. (e) [protective order requires showing of good cause]; Allen-Pacific, Ltd. v. Superior Court, supra, at p. 1556 [admissions motion should have been granted where party "did not satisfy the trial court that he was physically or mentally unable to respond" to request for admissions].)
Barden and Coleman contend that, because "an order from a judge carries more clout than an attempted communication by an attorney of record," the court "should have exercised its discretion by issuing an order compelling Plaintiffs to produce doctor certifications as to their disabilities, before deeming the RFAs admitted. The Court should have exercised its discretion by setting a court deadline for the submission of verified responses to the RFAs, allowing a brief period for Plaintiffs counsel to explain to Plaintiffs in writing the consequences of non-compliance with the courts order." However, no such order was requested, and the court was not obliged to issue one-it is not the judiciarys responsibility to optimize counsels client relations.
After the admissions motions were granted, appellants might have, but did not, move for reconsideration, or for amendment or withdrawal of the admissions based on "mistake, inadvertence, or excusable neglect" (subd. (m); see Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 975). Appellants claim that these remedies were unavailable because they "would have required declarations from Barden and Coleman, and/or declarations from their physicians, declarations which [Guillory] was unable to obtain until after [respondent] filed [its] summary judgment motion[]." However, there is no evidence of any effort by Guillory to obtain these declarations during the sixth months between the granting of the admissions motions and the filing of the motion for summary judgment. Guillorys declaration in opposition to summary judgment that she had only just received Bardens permission to obtain a declaration from her oncologist did not establish diligence, or "excusable neglect," in documenting either Bardens or Colemans incapacity. Even if this declaration could have been construed as a request for withdrawal of the admissions, it would have been properly denied.
In an April 22, 2003, declaration in opposition to a motion to dismiss the appeal, Guillory has attempted to put additional evidence before us of her efforts to substantiate her clients medical conditions. In this declaration, Guillory states that she did not obtain Bardens permission to contact the oncologist until February 5, 2002, and that she has not yet obtained the oncologists statement. Attached to the declaration is a February 25, 2002, letter from a psychiatrist indicating that Coleman was taking Prozac for depression, that her symptoms included "concentration impairment, memory impairment, and difficulties focusing," and that "these symptoms can impair her ability to finish tasks." Since this evidence was not before the trial court, we decline to consider it in reviewing the courts rulings. The additional evidence does not put the situation in a materially different light in any event.
There was no error in connection with the admissions, or the judgment thereon.
B. Sanctions
Guillory contends that she should not have been made jointly responsible along with her clients for the discovery sanctions because she did not advise them to default on the discovery requests. Appellants collectively contest the amount of sanctions awarded.
Neither of these objections to the sanctions was raised below, and they are not the sort of pure issues of law that can be raised for the first time on appeal. (See Richmond v. Dart Industries, Inc. (1987) 196 Cal. App. 3d 869, 879, 242 Cal. Rptr. 184.) Consequently, the objections were waived and there are no grounds to reverse the sanctions orders.
III. DISPOSITION
The orders granting the motions for admissions and sanctions, and the judgment, are affirmed.
We concur: Reardon, J., Sepulveda, J. --------------- Notes: All further statutory references are to Code of Civil Procedure section 2033.