Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. BC339313, Mark V. Mooney, Judge.
Arkin & Glovsky and Sharon J. Arkin for Plaintiff and Appellant.
Wolf, Rifkin, Shapiro, Schulman & Rabkin and Marc E. Rohatiner for Defendant and Respondent Old Republic National Title Insurance Company.
Robie & Matthai, Edith R. Matthai and Diana K. Rodgers for Defendant and Respondent Marcus, Watanabe, Snyder & Dave.
ARMSTRONG, Acting P. J.
Appellant Cynthia Beck had a dispute with her neighbors. Her title insurer, Old Republic National Title Insurance Company, hired the law firm of Marcus, Watanabe, Snyder & Dave ("MWSD") to represent her in the ensuing litigation. Disputes between Beck and her neighbors continued after the litigation was dismissed. Beck again sought coverage from Old Republic, which denied coverage.
Beck sued Old Republic for breach of contract, bad faith, and declaratory relief and sued MWSD for negligence and breach of fiduciary duty. Judgment was entered in Old Republic's favor after its motion for summary judgment was granted. Judgment was entered for MWSD as a sanction for discovery abuse. We affirm both judgments.
THE JUDGMENT IN FAVOR OF OLD REPUBLIC
Facts
The facts are not truly complicated, although various twists and turns in the litigation sometimes make it hard to state them simply. It all began simply enough: in January 2001, Beck bought a home on Beverly Glen Boulevard. Old Republic was her title insurer. In October 2001, she notified Old Republic that her next door neighbors, Ned and Marcia Goldstein, had torn down a wall and expanded a pool, creating an encroachment.
The Goldsteins filed suit against Beck on November 7, 2001, in BC261307. They brought causes of action for quiet title under adverse possession, prescriptive easement, and agreed boundaries theories, seeking to quiet title to an area described as the Wall and Pool Area. In a cause of action for injunction, they also alleged that Beck and her agents had trespassed onto their property and threatened them. Sadly, this lawsuit must be referred to as "Goldstein I."
Beck tendered the complaint to Old Republic, which agreed to provide a defense with some reservation of rights (for instance, on the trespass allegation) and hired MWSD to represent Beck.
The parties to Goldstein I agreed to mediation before retired Judge Thomas Schneider. The mediation resulted in an agreement, dated September 17, 2002 ("the September 2002 Agreement" or "the Agreement"), signed by the Goldsteins, Safeco Insurance Company (apparently, the Goldsteins' title insurer), Beck, and Old Republic.
As we will see, Beck later contended that the September 2002 Agreement was not a final or binding agreement. The question is apparently pending before another division of this Court, and nothing we say herein is intended as a comment on that issue.
The Agreement confirmed title to Beck and the Goldsteins according to their grant deeds and the boundary lines set forth in a March 2002 survey attached to the Agreement, and provided that Beck would demolish a brick wall currently in existence on her property and replace it with a wall of specified height and materials, in a specified location on her side of the boundary line, and that the Goldsteins would remove their guest house pool. Their engineer was to submit plans to Beck's engineers for approval, with provisions for resolution of any disagreement between engineers.
The Agreement also provided that disputes arising out of the terms of the Agreement would be submitted to Judge Schneider, whose decision would be binding, and called for dismissal of Goldstein I. On December 2, 2002, the Goldsteins filed a dismissal.
Pursuant to the September 2002 Agreement, Old Republic paid the Goldsteins $75,000, $15,000 of which was contributed by Safeco.
However, disputes continued, and in October 2004, the Goldsteins filed an amended complaint in Goldstein I. This complaint ("Goldstein I Revived") brought causes of action for breach of contract (the September 2002 Agreement), promissory fraud, nuisance, and for declaratory relief, a declaration that the September 2002 Agreement was a binding agreement. The complaint alleged that the Goldsteins had performed or attempted to perform their obligations under the Agreement, but that Beck had prevented them from fully performing by preventing them from backfilling the pool. They had returned to Judge Schneider, who ruled that Beck was required to execute a consent letter allowing them to backfill the pool on a portion of her property and that the wall that Beck was required to build had to hold up the grade differences between the properties. Beck had not built the wall or executed the letter.
Beck tendered the amended complaint to Old Republic, which on November 16, 2004, denied coverage, writing that the Goldsteins had removed the pool and relinquished any claims to Beck's property and that damages sought in the complaint did not arise from covered risks. The letter also states that Old Republic had provided representation to Beck during the disputes with the Goldsteins, but declined to provide further representation. MWSD would be paid through December 10, 2004, but not beyond that.
Beck and the Goldsteins stipulated to the revival of Goldstein I, but in April 2005, the Superior Court determined that the case could not be, and had not been, revived.
Then, on April 13, 2005, the Goldsteins filed a new complaint ("Goldstein II"), in case number SC085201, bringing causes of action for breach of contract, promissory fraud, and nuisance. The factual allegations are similar to those in the amended complaint in Goldstein I: the Goldsteins had performed, or attempted to perform, all the obligations imposed on them by the September 2002 Agreement and returned to Judge Schneider to resolve disputes. Beck had not complied with the Agreement or Judge Schneider's orders. In the nuisance cause of action, the complaint alleged that Beck and her agents had harassed and intimidated the Goldsteins' contractors and interfered with individuals performing work on the Goldsteins' property.
Beck tendered the complaint to Old Republic, which denied coverage on July 6, 2005, in terms similar to those in the November 2004 denial of coverage. Beck filed this lawsuit, alleging that Old Republic had a duty to defend and indemnify in Goldstein I Revived and in Goldstein II.
Discussion
We review an order granting a defendant's motion for summary judgment by applying the same three-step analysis applied by the trial court: we identify the issues raised by the pleadings and determine whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case. If the defendant has met its burden, we consider whether the opposition raised triable issues of fact. Our review is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-855, 860, Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334-335.)
All of Beck's causes of action depend on proof that she was deprived of policy benefits to which she was entitled. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36 [without coverage there can be no liability for bad faith].) "The burden is on an insured to establish that the occurrence forming the basis of its claim is within the basic scope of insurance coverage." (Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1188.)
At summary judgment, Beck had three coverage arguments: that disputed facts about the validity of September 2002 Agreement created a potential for coverage in Goldstein I (Revived) and Goldstein II; that the retaining wall she was required to build constituted (or would constitute) an easement, which was a covered risk; and that a gravel drainage structure the Goldsteins placed on her property constituted an encroachment, another covered risk. She proffered facts in support of those theories. The trial court found that "none of the evidence proffered by Beck is relevant in that none of that evidence supports the conclusion or even the inference that there was a conceivable theory or issue asserted by the Goldsteins in either Goldstein I or Goldstein II which could bring any of the claims asserted therein within Policy coverage." After independent review, we agree. Old Republic established that Beck could not prove an element of each of her causes of action, that she was owed a defense in Goldstein I (Revived) or Goldstein II. Beck did not in turn establish the existence of a triable issue of material fact.
Potential for Coverage
Beck relies on the well-established principle that an insurer owes a duty to defend its insured against claims that create a potential for indemnity. (Gray v. Zurich Ins. Co. (1966) 65 Cal.2d 263, 276.) She then contends that there were disputed issues of fact about the validity of the September 2002 Agreement, argues that if the Agreement was set aside the encroachment claims would be revived, and concludes that there was the potential for coverage in Goldstein I (Revived) and Goldstein II.
We see no potential for coverage.
In response to Old Republic's summary judgment motion, Beck proffered facts purporting to show that, inter alia, "there is a factual question whether the [September 2002 Agreement] should be rescinded for unilateral mistake" and "there is a factual question whether the [September 2002 Agreement] is an enforceable agreement or merely an agreement to agree." However, summary judgment can only be defeated if there is a triable issue of material fact. Facts about the validity of the Agreement are not material to the issues in this case.
First, the validity the Agreement could only be litigated between Beck and the Goldsteins, in Goldstein I, not between Beck and Old Republic, in this litigation.
Moreover (and this is the great flaw in Beck's argument), a ruling in Goldstein II setting aside the Agreement does not create a potential that that case would include any covered claim. If Beck's theories succeed, the Goldsteins will not prevail. All the original disputes might, as Beck suggest, once again come alive – but not in Goldstein II, which is an action to enforce a contract. The new or newly revived disputes might be covered disputes, but they would not be disputes raised in Goldstein II, and would not mean that Old Republic was obliged to provide a defense in that case, or had such an obligation in Goldstein I (Revived.)
We do not understand Beck to argue that the fraud or nuisance causes of action are covered.
The Wall
Beck's argument here is that the demand in Goldstein I (Revived) and Goldstein II that she build a retaining wall is a demand that she grant an easement over her property. In her view, coverage for the claim is found in the policy provision listing as a covered risk "Someone else has an easement on the Land."
Beck acknowledges that the policy does not cover risks "that are created, allowed, or agreed to" by the insured, but argues that while she agreed to build a wall, she did not agree to build a retaining wall. She then cites a Civil Code definition of easement as "The right of receiving more than natural support from adjacent land or things affixed thereto," and argues that a retaining wall is an easement. (Civ. Code, § 801, subd. (13).)
This is an interesting argument, but it fails. "Easement" is a defined term in the policy, and it is that definition, not the Civil Code definitions, which must govern.
The policy defines "easement" as "the right of someone else to use the Land for a special purpose." That is precisely what Beck agreed to. Perhaps, as she argues, she did not agree to build a retaining wall, but she did agree that the land would be used for a "special purpose." For purposes of the policy, the nature of that special purpose – support of a grade difference or privacy – is irrelevant.
Beck makes another argument, that the wall is covered under another of the covered risks "Someone else has rights affecting Your Title arising out of leases, contracts, or options." Beck's argument is that the wall is a right arising out of a contract, the Agreement.
Thus, Beck asks us to find that an insured's agreement to a wall, clearly excluded under one part of the policy, is covered under another part. She asks us to nullify the exclusion for risks agreed to by the insured. We decline the invitation. An interpretation rendering contract language nugatory or inoperative is disfavored. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473.) The obvious meaning of the coverage for rights affecting title and arising out of contract is that there is coverage for rights created by contracts entered into by someone other than the insured.
The Drainage Encroachment
Beck also proposed as undisputed that in October of 2002, the Goldsteins installed an underground drainage system, covered under that portion of the policy which defines as covered risk, "your neighbor builds any structures after the Policy Date -- other than boundary walls or fences -- which encroach onto the Land," and that she tendered the claim to Old Republic, which denied coverage.
Even if Beck is correct that the drainage system is an encroachment covered under the policy (which Old Republic vigorously disputes), Old Republic's motion for summary judgment was properly granted.
"Summary judgment cannot be granted on a ground not raised by the pleadings," (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663), and the complaint in this action did not raise this issue. Beck's complaint alleged that Old Republic had an obligation to defend and indemnify her in Goldstein I and Goldstein II. She did not sue for Old Republic's failure to defend or indemnify with regard to this alleged encroachment. In her argument to the contrary, Beck cites the allegation that "Ms. Beck promptly notified Old Republic of the property encroachments and claims against her . . ." and that Old Republic was obligated to provide a defense "for the property encroachments or claims against her." In the context of the complaint, that language refers to the claims and encroachments in Goldstein I and II, and cannot reasonably be read to include this alleged drainage encroachment.
THE JUDGMENT IN FAVOR OF MWSD
Facts
Against this defendant, Beck's complaint alleged, inter alia, that the firm failed to exercise reasonable care and skill in its representation of her; performed negligently in drafting the September 2002 Agreement "and thereafter," subjecting her to additional litigation by the Goldsteins, inadequately advised her on matters such as the significance of signing the Agreement; inadequately investigated the mediator's relationship with the Goldsteins; and sought to protect Old Republic's interest in having the Goldstein litigation resolved quickly and cheaply, rather than seeking to protect Beck's rights. This lawsuit was filed on September 5, 2005, and on October 14, 2005, MWSD served form interrogatories, special interrogatories, and requests for production of documents on Beck, who was represented by counsel throughout the proceedings. The discovery requests were thorough, but not out of the ordinary. What was unusual was the response -- delay, objection, obfuscation, and evasion. The terminating sanctions were imposed after more than a year of such conduct, and after two successful sets of motions to compel. As counsel for MWSD argued at the hearing on the second set of motions to compel "discovery just plain isn't supposed to work this way."
"The court's discovery to impose discovery sanctions is broad, subject to reversal only for manifest abuse exceeding the bounds of reason." (American Home Assurance Co. v. Societe Commerciale Toutelectric (2002) 104 Cal.App.4th 406, 435.) We find no abuse of discretion. Instead, "we marvel at [the court's] forbearance." (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)
The events leading up to the March 2006 order granting MWSD's first motions to compel
Responses to MWSD's discovery were due on November 15. (Code Civ. Proc., §§ 2030.260, 2031.260.) On November 1, Beck wrote to MWSD and Old Republic, stating her belief that the information requested could be used against her in the on-going Goldstein litigation, and asking both defendants to agree to a protective order. She attached a stipulation for a broad protective order and asked for a response by November 4, writing that if the defendants did not agree to a protective order by that date, she would seek one from the court.
Our record does not include Old Republic's response.
MWSD did not respond by Beck's very short November 4 deadline, but did respond. On November 21, MWSD wrote that it was not sure that a protective order was warranted and asked for more information on, for instance, the type of information Beck sought to protect. Beck did not respond to the letter, and never provided the information or even indicated a willingness to discuss MWSD's concerns.
On November 16, Beck served responses which included no substantive information. Instead, each question or demand was answered with an objection on the ground that a response would be unfair, prejudicial and an invasion of Beck's rights to privacy. Sometimes, there were additional objections of privilege, work product, and/or vagueness. As the trial court later noted, Beck asserted the privacy objection even in response to interrogatories asking whether she spoke English with ease and her date of birth.
MWSD made meet-and-confer efforts. On December 13, at a hearing on Old Republic's demurrer, MWSD asked Beck's counsel for the basis for Beck's objections and for some information about Beck's contentions against MWSD. Counsel said that David Marcus (of MWSD) knew what the contentions were, and that discovery responses were ready and would be provided as soon as a protective order was in place. Also on December 13, MWSD hand-delivered a meet-and-confer letter reminding Beck that she had not responded to MWSD's request for more information on the need for a protective order, and addressing, in detail, Beck's objections to discovery. MWSD asked for supplemental responses by December 22, indicating that if responses were not received, it would move to compel.
All the information about meet and confer efforts, on both motions to compel, is found in declarations and documents attached to MWSD's motions. Beck did not offer competing declarations. To the contrary, in response to the second set of motions, Beck wrote that while MWSD recited "the normal workings of the meet-and-confer process" "in intricate detail," she would not burden the court with a response in kind.
Beck did not provide responses by December 22. (She did, by letter of December 19, ask that MWSD and Old Republic's lawyer provide detailed information on any previous representation of Safeco, the Goldsteins' insurer.) Instead, on December 23, Beck's counsel called MWSD, asking for more time. MWSD and counsel agreed to an extension of time for MWSD's motions to compel, until January 18, 2006.
MWSD sent another meet and confer letter on January 6, 2006, writing that it had not received any communication from Beck since the December 23 conversation.
On January 11, 2006, Beck finally moved for a protective order. Hearing on the motion was set for March 1, 2006. Beck suggested that MWSD delay filing its motions to compel until after that date. MWSD did not agree, and on January 18, 2006, moved to compel responses to all three forms of discovery. Those motions, too, were set for March 1, 2006. MWSD moved to have the motions heard sooner, but the request was denied.
At the hearing, Beck represented that she intended to answer all discovery and had always had that intention, but was waiting for a protective order. The court denied the motion for protective order, finding that "Plaintiff's proposed protective order . . . references 'Confidential Information' but there are no facts showing what that information is, or why a limitation of that disclosure is required. Plaintiff cites 'unfair prejudice,' but without knowing the context of information sought, the claimed prejudice is in the abstract." The court also found that nothing in the motion suggested that Beck had made a reasonable and good faith attempt at an informal resolution, as required by statute.
In contrast, on the motions to compel, the court found that MWSD had attempted "at length" to meet and confer. The court granted the motions and ordered Beck to provide full and complete responses to all discovery requests by April 13, 2006, ordering in particular that the interrogatories be answered without further objection.
The events leading up to the second (December 5, 2006) order compelling answers to discovery
Beck asked MWSD for two extensions of time, to April 20 and then to April 25. MWSD agreed to both. On that date, Beck responded to special interrogatories and made a gesture toward production of documents. There was no response to form interrogatories until May 31, and none of the responses were in compliance with the court orders.
The special interrogatories were "answered" with a computer disk of over 7,000 pages of PDF files, with no table of contents or other method of determining where the answer to any given interrogatory began. The response is thus difficult for this court to summarize, as it was, undoubtedly, for MWSD to understand. However, it is clear that where the interrogatories asked Beck to identify documents in support of a contention, she responded that she would provide documents pursuant to Code of Civil Procedure section 2030.230. Where the interrogatories asked Beck to identify witnesses with knowledge of a contention, she responded with a long list of names which included City and County elected officials and administrators, and several judges. MWSD puts the number of names at 192. We have no reason to doubt that, and no desire to count. (In its meet and confer letters, MWSD pointed out that although the list was long, it was not complete. For instance, Beck listed the Goldsteins' contractors, but not her own.)
As to the remaining questions, Beck seems to have responded with identical answers consisting of hundreds of pages of the history, and pre-history, of the Goldstein litigation and other matters.
Beck's response to the requests for production of documents was no better.
On April 25, MWSD was informed by a copy service it was going to receive boxes of documents from Beck's counsel, which could be copied at MWSD's expense. MWSD naturally wondered how many boxes would be delivered, and ultimately learned that the number was six. MWSD told Beck that it wished to examine the documents before having them copied. During subsequent conversations between MWSD and counsel for Beck, the number grew to 24 boxes. By May 8, when MWSD went to counsel's office to look at documents, there were 28 or 29 boxes. When MWSD realized that no correspondence had been produced, although it had been requested, Beck's counsel said that there might be another 10 boxes. When asked which documents corresponded to each request, counsel told MWSD to "figure it out."
By the time of MWSD's second motion to compel, Beck had produced 42 boxes of documents, and until the hearing on that motion was indicating that there might be more documents. Late in May, Beck provided a "courtesy" index to the documents, but wrote that she did not warrant its accuracy or completeness.
The requests for production asked for many different categories of documents, asking, for instance, for Beck's copy of the Old Republic policy, documents in support of the claim that MWSD was negligent, and documents in support of the claim that Beck had suffered monetary and emotional distress damages. Yet, throughout the production, Beck maintained that every document in the 42 boxes was responsive to each request.
Beck did not produce a privilege log until late in June, and it is hardly a privilege log. It identifies documents by broad category (i.e., "communications between Collins Law Firm or Cynthia Beck (either directly or through Gerry Saenz) and various insurance companies re coverage against Goldstein claims"), listing "Bates Range" and "Dates" as "various."
Because Beck claimed as damages the costs of the Goldstein litigation and this litigation, MWSD specifically asked for billing statements, checks, or receipts which supported her contention that she was damaged by the amounts she had had to pay "additional attorneys" to undo damages caused by MWSD's negligence. No checks or bills were produced, and none were identified on the privilege log, although Beck later claimed privilege.
Beck did not answer the form interrogatories until May 31. Contrary to the court's order, she repeated her earlier objections and raised new ones. In some instances, she did not answer the questions, and in some instances, she provided answers which the trial court later found were incomplete and evasive. Here, too, when asked to identify witnesses, she responded with a very long list of names which included many City and County elected officials.
Again, MWSD made meet and confer efforts, sending letters detailing the problems with Beck's responses. At MWSD's insistence, Beck agreed to produce billing records in redacted form by May 30.
In May and June, Beck and MWSD agreed that MWSD's motions to compel would be on July 10. In the week before that deadline, MWSD repeatedly attempted to contact Beck. Finally, on July 10, Beck asked for additional time to meet and confer and a new deadline of August 31. MWSD agreed.
On July 19, counsel conferred for two hours. Beck refused to withdraw any objections or to amend, shorten, or clarify any of her responses. In a declaration in support of MWSD's second motion to compel, MWSD wrote that Beck had agreed to identify the documents responsive to each request by box number or, where the documents were Bates-stamped, by Bates number. (Beck never did so.) Beck also said that additional documents would be produced, but would not say how many.
MWSD later produced evidence that of the over 75,000 documents produced, more than two-thirds were not Bates stamped.
MWSD confirmed the discussion by letter of August 11, asking for supplemental responses by August 18. In response, Beck's counsel wrote that he intended to provide supplemental responses and to address misstatements in MWSD's letter, but because MWSD had interrupted the schedule with appearances and briefing on another issue, responses would not be provided until August 25. On August 26, counsel wrote that he had been involved in an emergency and that supplemental responses would be provided on September 1. No responses were received on that date.
The issue concerned MWSD's attempt to inspect Beck's property. MWSD first sought the inspection in April 2006, relevant to its theory that the dispute between Beck and the Goldsteins could be fixed for perhaps $200,000, and that Beck was failing to mitigate. Beck's resistance to this request was similar to her resistance to the other discovery. There were repeated hearings and orders, each followed by claims that the orders were unclear, or by new obstacles, here in the form of demands that MWSD and its experts sign lengthy hold harmless and privacy agreements. We do not summarize those facts in detail. Beck's actions in this regard were not a basis for terminating sanctions, and this opinion is long enough.
On September 21, 2006, MWSD filed another set of motions to compel and for terminating or monetary sanctions. Lengthy hearings were held on November 16 and December 1, 2006, on tentative rulings in favor of MWSD.
Beck's argument was that she was "trying very hard to provide answers to discovery," but that the court's prior orders were unclear, and/or that compliance was impossible, and that MWSD had failed to meet and confer.
For instance, Beck contended that she had not understood that the court had ruled that her answers were to be without objection. Instead, she believed the court had only barred new objections. The court found that the position was not a reasonable position.
As to impossibility, Beck's counsel acknowledged that the responses to the special interrogatories were "huge," but represented that Beck believed that all the facts were relevant, and that it was not clear that she could or would verify a shorter response. The court informed counsel that responsive answers, directed to the question, were required. After further long discussion, counsel suggested that the court strike irrelevant portions of the answers.
Counsel made similar arguments about the questions which asked Beck to identify witnesses, arguing that Beck had, for instance, written to City Attorney Rocky Delgadillo about the dispute with the Goldsteins. She assumed that he read his mail and thus had knowledge.
Regarding the meet and confer efforts, Beck's counsel represented that Beck did not want to answer certain interrogatories because she had a strong and justified concern about the privacy of her personal information. He had thus asked MWSD why it needed certain information, seeking to determine "what they really need." MWSD would not explain, but replied that the court had ordered the information. The court agreed with MWSD, saying "they don't have to give you any justification. It's a court order."
The court found willful violations of court orders and granted the motions to compel, ordering full and complete verified responses without objection other than attorney client privilege or work product, to be served within 30 days.
Specifically, on the request for production of documents, the court ruled that Beck was to identify the documents responsive to each request, and to produce a privilege log which did not merely say, as she previously had, that she was producing "all responsive, non-privileged documents in her possession . . .," an answer the court found evasive.
On the special interrogatories, the court found that Beck could not assert Code of Civil Procedure section 2030.230, but had waived that option because she did not assert it with her initial response, and that in any event the production of 42 boxes of "unlabeled, unorganized documents" did not comply with the statute.
As to sanctions, the court ruled that under the law, it could at that point impose only monetary sanctions, and that it was incumbent on the court to give Beck one more chance. The court awarded $2,315 in sanctions on each motion. Terminating sanctions were denied without prejudice to being renewed after the responses were received.
Before the hearing ended, the court several times asked counsel for Beck whether there were any additional questions or whether the orders were clear. Counsel responded that the orders were very clear and that full and complete responses would be provided in 30 days.
The minute order notes "if there is any confusion or disagreements regarding the court's rulings . . . counsel for both parties should jointly telephone the clerk and request a conference call with the court to obtain clarification."
By this time, only one deposition had been taken in the case, a witness who was, apparently, the person most knowledgeable at a copy service, and who would have been peripheral at best.
The events between the second order compelling responses and the terminating sanctions
Beck did not comply with the second set of orders compelling responses, but again engaged in delay, evasive responses, and requests for clarification, though not from the court, as instructed.
For example, at the December hearing, Beck had contended that despite meet and confer efforts, MWSD had not sufficiently defined "incident" for purposes of the form interrogatories. MWSD told the court it would provide Beck with a written definition, and it did so by letter of December 4. The letter gives the term its obvious meaning in the context of the case, that is, the "circumstances and events surrounding the alleged negligence, alleged breach of fiduciary duty, and alleged malice, oppression or fraud of [MWSD] during and in connection with its representation of Cynthia Beck."
Beck purported not to understand. On December 14, she wrote that "we do not know what you mean by the circumstances and events 'surrounding' the negligence. For example, if one were to refer to people 'surrounding' a house, it would mean people outside the house not inside the house. Thus, your reference to circumstances 'surrounding' the alleged negligence means things on the outside of but not including the actual acts of negligence." Beck wrote that if MWSD wanted to provide a clearer definition, it should do so by the next day. If not, Beck would do her best to answer as she currently understood the definition of the term. MWSD seems, understandably, to have chosen not to respond to this letter.
Even more outrageously, in a letter of December 13, Beck wrote that MWSD had contended that there were irrelevant facts in her interrogatory responses and that "Ms. Beck believes the facts she included are relevant. However, if you would like to point out which of the facts, and witnesses, you believe are irrelevant, we will consider revising our supplemental discovery responses to eliminate those purportedly irrelevant facts and witnesses. If, on the other hand, you cannot identify any facts or witnesses that are truly irrelevant, then it would be hypocritical of you to criticize Ms. Beck for being unable to do so." Beck set a deadline of December 20 for "your input about which specific portions of Ms. Beck's previous responses were irrelevant." Once again, MWSD seems to have chosen silence as the best response.
Beck also moved, yet again, for a protective order. The motion was made ex parte on December 20, 2006, and refers to the interrogatories which ask about Beck's place of birth and educational and employment history. The motion relies on declarations asserting that Beck's homes had been burglarized and that Ned Goldstein had gone through her garbage, and attempts to show that MWSD was affiliated with Ned Goldstein and would share confidential information with him. Beck argued that MWSD and Old Republic already had all the information sought in the form interrogatories, having obtained it as Beck's counsel and as her insurer, but now sought to get the information from a non-confidential source, so that it could be publically disclosed. In January, the court (Judge Mark Mooney had just taken over from Judge Lee Edmon, who had had the case thus far) denied the motion.
At the end of December, MWSD granted Beck's request for a 15 day extension of time, so that all responses were due on January 19, 2007. On that date, Beck served supplemental responses to the special and form interrogatories. The responses did not comply with the court orders.
First, Beck failed to answer some of those special interrogatories. For instance, in response to interrogatories which asked her to identify all writings which supported her claim for negligence and her claim that MWSD failed to exercise reasonable care, Beck wrote that she was "not an expert in the standard of care for attorneys, and has not yet retained one to consult with her in this litigation. In her lay opinion, she does not know what documents show [MWSD's] negligence."
Some responses are non-compliant through overkill. In response to an interrogatory which asked Beck to identify documents which supported her contention that MWSD acted negligently in drafting the September 2002 Agreement, Beck wrote that all the pleadings in Goldstein I and Goldstein II were responsive. When asked to identify documents in support of her claim that she had suffered monetary damages, Beck identified 84 specific letters and bills, but then added about 30 categories of documents, including all correspondence between specified lawyers, all documents produced by Old Republic, and all documents produced by Beck.
Some questions were answered with generalities. For instance, when asked to state all facts in support of the negligence and breach of fiduciary duty claims, Beck answered, inter alia, that numerous specified MWSD lawyers were "less than completely honest" with Beck and the court, and that MWSD had refused "to follow-up on discovery," or to "properly depose witnesses" and had "with malice and oppression, accept[ed] the representation of Beck's case specifically to ensure that Beck would suffer extreme harm and financial loss of the benefit of [Old Republic] and Goldstein." Those are contentions, not facts.
Once again, pages of names were provided when special interrogatories asked for persons with knowledge. There were 86 names listed in response to the question which asked Beck to identify all witnesses who had knowledge of the facts concerning the claim for negligence, with the proviso that "Beck, of course cannot know for certain of what some other person has knowledge." The responses to form interrogatories are perhaps not as bad, but contrary to court orders, include objections.
Beck responded properly to one of the requests for production by producing her copy of the Old Republic policy. Other than that, she wrote that she had produced all responsive documents or listed them on the privilege log. The privilege log does not list any billing records. It does include many entries for "check to Collins law firm," with dates but no other information, and the objection "privacy."
Also on January 19, Beck sent two letters about the document production. In one, she wrote that she was confused by the court's order that she produce the documents organized to correspond to the requests, that many documents were responsive to more than one request and that "The only way we can think of to comply with the Court's order is to bring all 42 boxes into a room. We will then pull out the documents responsive to your inspection demand number one. After you finish reviewing them, and if you would like after you copy them by means of a mobile photocopier, we will return those documents to the boxes and then pull out the documents responsive to category number two. We will continue in this manner until we have pulled the documents seriatim for each of your inspection demands." MWSD declined the invitation, believing that such a production could take weeks.
She again suggested an alternative, that she provide an itemized list by Bates number. At oral argument on the motion for terminating sanctions, MWSD contended that the option was not helpful, because many of the documents were not Bates stamped. Beck once again sought to put the onus on MWSD, saying that she would have addressed the problem if MWSD had pointed it out.
The second letter concerns the order that Beck produce billing statements. Beck wrote that she was confused by the court's order and asked MWSD to "let us know whether you would prefer to actually receive the billing statements, but redacted to remove privileged information. If not, we will withhold them entirely and list them on the privilege log."
MWSD again moved for terminating sanctions.
Oral argument took place on March 15 and March 29, 2007. Beck argued that she had provided discovery and was willing to provide all documents. In her view, any lack of compliance was MWSD's fault, because MWSD had not brought problems to her attention or sought guidance from the court, and had not responded to her offer to produce documents or, on the billing records, chosen between receiving redacted records or listings on a privilege log.
Argument was continued because MWSD made an error in service. We thus reject Beck's contention that the judgment must be reversed because she did not receive proper notice of the hearing. The problem was cured by the continuance.
The court noted that the onus was on Beck, not MWSD, to initiate a call to the court if problems arose, and also noted that the case was not a highly technical or complex one. The court found that Beck had not done the things that Judge Edmon had instructed her to do. Billing records and checks had not been produced and that "to unload . . . 100,000 documents . . . and say, well, it's all in there somewhere, that is not sufficient. Maybe it might have been good the first time around, but there have been a few rounds now."
Speaking to the central issue, the court ruled "You're the plaintiff. You brought this lawsuit. Plaintiffs have within their knowledge what supports their litigation, what is the basis of your pursuing this action. You shouldn't have to wait to have an expert tell you that you have a case. You should know if you've got a case, and that should be based on the documents you have in your control, the witnesses that you are aware of that you interviewed to support this case, with the checks and billing records that you have in your control. And you've been ordered to produce all these things many times over, and it still hasn't happened."
The court granted the motion for terminating sanctions, finding that "The court has tried less drastic sanctions in this case. Monetary sanctions were imposed. . . . I don't know what more the court can do."
Beck moved for reconsideration under Code of Civil Procedure section 1008 and for relief under Code of Civil Procedure section 473. With the motion, she served supplemental answers to interrogatories, and wrote that she would produce the documents on four computer disks, organized and labeled according to the categories in MWSD's demand. Counsel declared that the failure to produce documents correctly was due to his excusable neglect, in that he had in good faith misunderstood court orders and because MWSD had failed to respond to his offers to produce documents. He made similar statements about the special interrogatories.
MWSD's reply contended that even the new production was inadequate: it did not include billing records, and the checks to counsel which were produced appeared to relate to other cases in which counsel represented Beck.
The court denied the motions.
Discussion
In Beck's view, she complied with December 1, 2006 orders. She was reasonable, cooperative, and acting in good faith throughout the discovery process, even if she was at times mistaken about the law or the court's orders, and is the innocent victim of MWSD's "campaign to undermine" her. The terminating sanctions are thus nothing more than an impermissible effort to punish her. As must be amply clear by now, we do not agree.
Beck was not reasonable and cooperative. She began the discovery process by failing to meet and confer on her protective order, and failing to move for such an order until months after her discovery responses were due. Then, she served ridiculously long answers to special interrogatories, full of irrelevancies, and sought to put the burden on her opponent, or the court, to sort things out. She continually came up with reasons for delay and nonsensical objections -- the definition of "surround" comes to mind.
Nor did she comply with the December 2006 orders. She did not produce all the documents, and the documents which were produced were not produced in the manner ordered by the court, that is, responsive to the demands. She asserted objections where she had been told not to. She provided overbroad answers which could only have been intended to burden or confuse MWSD.
Nor, if it need be said, do we see any vile conspiracy on MWSD's part. MWSD and its counsel propounded discovery, met and conferred, granted extensions of time when asked to do so, and sought orders from the court. There is nothing wrong with any of that.
Beck also makes the unbecoming argument that sanctions were an abuse of discretion because the earlier monetary sanctions were modest, thus essentially arguing that she should have been sanctioned more, sooner, and would have provided discovery if she had been. Beck was obliged to comply with discovery because she filed a lawsuit, and obliged to follow court orders because they were court orders. The modesty of the earlier sanctions is no excuse.
In choosing a sanction, the trial court should consider the totality of the circumstances, including the conduct of the offending party to determine if the actions were willful, detriment to the propounding party; the number of formal and informal attempts to obtain the discovery, and time spent avoiding or evading discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) That is what the trial court did here.
The sanctions were appropriate in light of the fact that a year and a half after Beck filed her complaint, MWSD had not received responses to its first set of discovery requests and could not have been anywhere near ready to go to trial. It took over a year for Beck to produce her copy of the insurance policy and to come up with a list of witnesses which did not include the City Council. If allowed to go forward, this case was going to take forever and cost the sky. This was not punishment. It was prevention.
"A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) That is this case.
Disposition
The judgment in favor of Old Republic is affirmed, as is the judgment in favor of MWSD. Both respondents to recover costs on appeal.
We concur: MOSK, J. KRIEGLER, J.