Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV022361
BLEASE, Acting P. J.
Defendant Christopher Blincoe appeals from a default judgment entered after the trial court granted terminating sanctions striking his answer as a result of his failure to respond to discovery.
Defendant’s argument centers around two issues: (1) the willfulness of his conduct (or lack thereof), and (2) the court’s abuse of discretion in granting the sanctions. As to the first issue we shall conclude the trial court was not required to make an express finding of willfulness and the record contains substantial evidence that defendant’s conduct in avoiding discovery was willful. As to the second issue we shall conclude the trial court did not abuse its discretion in imposing terminating sanctions in this instance.
Defendant also purports to appeal from the trial court’s award of attorney fees to plaintiff in the amount of $142,151.50. However, the attorney fees were contained in a post-judgment order from which defendant failed to appeal. Accordingly, we have no jurisdiction to consider the matter of attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Case
This case arises out of an agreement for the sale and purchase of stock, which was later rescinded. When defendant failed to give back the purchase money after the sale was rescinded, plaintiff brought this lawsuit. Defendant had purchased real property in Texas with the proceeds of the stock sale, and the Texas property was defendant’s primary asset. Thus, plaintiff was operating under some urgency lest the property lose its value, or lest defendant succeed in selling the property free of any lien. Defendant resisted plaintiff’s discovery attempts. When the case had dragged on one year and five months and plaintiff still had virtually no discovery, it requested terminating sanctions, which the trial court granted. After the court entered a default judgment, plaintiff made an application for attorney fees as an item of costs, and the court granted the fees as requested.
Defendant had already sold two and one-half acres of the Texas property without turning over the proceeds to plaintiff, and had attempted to have plaintiff’s lis pendens removed from the property.
The stock-purchase agreement was between defendant as seller and several Blincoe family trusts as purchasers. The stock that defendant agreed to sell consisted of 6,294.4 shares in B.J.J. Company, Inc. Defendant received $646,621.88 for his shares, with which he purchased real property in Texas.
Approximately 11 months after the stock-purchase agreement, the same parties rescinded the agreement with the execution of a Rescission of Purchase and Sale Agreement for the shares of B.J.J. Company, Inc. Despite the rescission, defendant did not return the money. The purchasers assigned their right under the rescission agreement to plaintiff. Plaintiff, F. Earl Blincoe and Helen Blincoe Family L.P., is a limited partnership. Earl and Helen Blincoe are defendant’s grandparents.
2. The Discovery
Because defendant’s appeal includes an argument that there was no substantial evidence that he willfully misused the discovery process, we set forth the facts surrounding discovery in some detail.
Although plaintiff filed its complaint on November 7, 2003, it was unable to initiate discovery until almost a year later, on October 26, 2004. This delay was a result of being unable initially to serve defendant, of defendant’s motion to quash service, and of defendant’s demurrer. Defendant’s motion to quash service and demurrer were both unsuccessful. Finally, defendant answered the complaint on October 21, 2004, and plaintiff promptly served a round of discovery a few days later.
The discovery consisted of form interrogatories, special interrogatories, requests for production of documents, and requests for admissions. The discovery was fairly standard, asking for certain background information, the bases for the contentions in defendant’s pleading, and documents relating to those contentions. Responses to the discovery requests were due on November 30, 2004, except for the request for admissions responses, which were due December 1, 2004. In conjunction with these discovery requests, plaintiff noticed defendant’s deposition for the middle of December, giving plaintiff’s counsel approximately two weeks to review the responses and prepare for the deposition.
Defendant’s answer contained a general denial (unverified) and 38 affirmative defenses. All of plaintiff’s 148 special interrogatories were contention interrogatories directed at discovering the bases for defendant’s affirmative defenses.
Defendant asked plaintiff for additional time, until December 20, to respond to the discovery requests. Plaintiff agreed on the condition that defendant allow his deposition to be taken in Stockton, California on January 7, 2005. In response, defendant moved for an order extending time to respond to discovery. Because defendant could not have his motion to extend heard before the discovery responses were due on November 30, he served answers to the discovery requests which, with one exception, were objection-only responses. The sole exception was that defendant gave the name and address of his attorney when responding to the form interrogatory requesting the name of each person assisting in the preparation of the responses. The form interrogatory responses were not signed under oath by defendant, despite the requirement in Code of Civil Procedure section 2030.250, subdivision (a), that the responses be signed by the party under oath unless they contain only objections.
References to an undesignated section are to the Code of Civil Procedure.
The trial court granted defendant’s request to extend time to respond to discovery, and ordered the responses due on December 20, 2004. After the hearing plaintiff tried to elicit available dates for defendant’s deposition from defendant’s attorney. On December 20, 2004, the continued due date for discovery responses, defense counsel sent plaintiff’s counsel a letter stating he would provide deposition dates in a day or two, but said nothing about the discovery responses, and plaintiff received no discovery responses on the continued due date.
On December 23, 2004, plaintiff demanded defendant deliver the delinquent responses no later than January 3, 2005, and proposed a deposition date of January 21 or 24. When no responses were forthcoming, plaintiff threatened to file a motion to compel and request sanctions if the responses were not received by January 7, 2005. Defendant agreed to a deposition date of January 26, and promised to have the discovery responses delivered to plaintiff by January 14. Predictably, no responses were forthcoming on January 14, and on February 3, 2005, plaintiff filed a motion to compel discovery responses, compel attendance at defendant’s deposition, and for sanctions.
Two days prior to the February 16 hearing on plaintiff’s motion to compel, defendant sent a supplemental response to plaintiff’s requests for production of documents and for admissions. The document response contained objections, but stated defendant would “produce all relevant, non-privileged, responsive documents within his possession, custody or control responsive to this request to the extent that they exist.” The response was not timely, resulting in a waiver of any objections, did not comply with section 2031.240, subdivision (b) requiring defendant to identify the documents to which objection was being made, and did not comply with section 2031.250, subdivision (a) requiring the response be signed under oath. (§ 2031.300, subd. (a) [providing objections are waived if response is not timely].) Defendant did not produce any documents. The response to plaintiff’s request for admissions contained the same set of objections for each response, and denied each request.
After the hearing on the motion to compel, the trial court entered its order granting the motion in its entirety. The order stated defendant had waived all objections to discovery, that discovery responses were to be provided by April 15, 2005, and ordered defendant to appear for deposition no more than 30 days following service of the discovery responses. The trial court awarded $5,681.30 in sanctions against defendant. By the time the trial court entered this order, trial in this matter had been set for July 18, 2005, less than four months away.
April 15 came and went without plaintiff receiving any further discovery responses from defendant. Finally, on April 21, defendant served supplemental responses to the form and special interrogatories. Defendant gave no further responses to plaintiff’s requests for documents or for admissions. The interrogatory responses were essentially useless. They were rife with objections, despite the court order that all objections had been waived. Like the responses to the requests for documents and admissions, the interrogatory responses were unverified.
Aside from the numerous objections, the responses contained very little useful information. For example, plaintiff’s special interrogatories consisted solely of contention interrogatories directed to defendant’s affirmative defenses. For each affirmative defense, plaintiff asked whether defendant was asserting such contention, the facts upon which the contention was based, the people with knowledge of the facts, and the documents supporting the facts. Defendant’s answers to the interrogatories concerning his lack of standing affirmative defense are illustrative of his responses. In response to the question, “Do [you] conten[d] that Plaintiff lacks standing to bring the claims alleged[,]” defendant asserted numerous objections, before answering:
“Yes. Defendant’s affirmative defenses were raised as a matter of right and to avoid waiver. Plaintiff has not submitted evidentiary support for its claims and has not provided deposition testimony. Because of these failures, defendant does not have documents or witnesses to support this affirmative defense but continues to assert this affirmative defense and reserves the right to do so should supporting evidence be discovered. [¶] Discovery Continues.”
When asked for the facts upon which he based the claim that plaintiff lacked standing, defendant answered (after numerous objections), “Yes.” This non-responsive answer was followed by the same statement quoted above. The identical, non-responsive answer was given for the interrogatory asking for the identification of persons with knowledge of, and the interrogatory asking for documents containing information of, the facts supporting the claim of no standing.
Another typical response was to the special interrogatory asking for the facts supporting defendant’s affirmative defense of unclean hands. Defendant gave a long narrative answer about his mental illness and a history of its treatment. This narrative was actually an amalgam of the argument contained in his opposition to plaintiff’s earlier application for a temporary restraining order, and his declaration in opposition of the TRO. Defendant repeated this narrative, word for word, 31 times in his response to the special interrogatories, and repeated it several times in the answers to form interrogatories as well.
Plaintiff sought and was granted an order restraining defendant from selling or transferring the Texas property when defendant attempted to have plaintiff’s lis pendens removed.
When plaintiff received defendant’s supplemental answers containing little meaningful information, trial was less than three months away. The case had been pending for approximately a year and one-half.
After receiving defendant’s supplemental answers, plaintiff filed a motion for terminating and monetary sanctions. The trial court granted the motion, striking defendant’s answer, and awarding plaintiff monetary sanctions in the amount of $4,713.80, in addition to the amounts previously ordered. Defendant moved to reconsider the sanctions order on the ground that defendant was incapable of participating in his defense, even though he sometimes “appears lucid and functional” during conversations. The trial court denied the motion to reconsider.
Defendant has been diagnosed with “Schizoaffective Disorder” and he suffers from periodic psychotic episodes.
Defendant’s answer having been stricken and his motion to reconsider having been denied, plaintiff requested entry of a default judgment. After a prove-up hearing the court entered default in the amount of $784,120.88, consisting of the $646,621.88 paid for the shares, plus pre-judgment interest in the amount of $123,935.86, plus costs and previously awarded monetary sanctions.
Plaintiff subsequently made a post judgment motion to fix attorneys’ fees as an item of costs. The motion was granted in the amount of $142,151.50. The trial court thereafter entered an amended judgment adding the amount of attorney fees, for a total award of $926,272.38.
DISCUSSION
Defendant’s arguments focus on whether he willfully failed to comply with his discovery obligations and whether the trial court abused its discretion in granting terminating sanctions. We shall conclude that substantial evidence supports a finding of willfulness, and that the trial court did not abuse its discretion.
I
Terminating Sanctions
A. Willfulness
Defendant argues both that the trial court failed to make an express finding of willfulness, and that no implied finding of willfulness was supported by the evidence. There was, indeed, no express finding of willfulness, but we shall conclude no express finding was required. We imply a finding of willfulness, and the record amply supports such an implied finding.
1. Express Finding Not Required
The Civil Discovery Act (§ 2016.010 et seq.) does not require an express finding of willful failure to comply with discovery before terminating sanctions may be imposed. The Act merely states that a terminating sanction is one of the sanctions a court may impose for misuse of the discovery process. (§ 2023.030, subd. (d).) Misuse of the discovery process includes, inter alia, failing to respond to an authorized method of discovery, making unmeritorious objections without substantial justification, making evasive responses, and disobeying a court order to provide discovery. (§ 2023.010, subds. (d-g).)
Some cases have held that a trial court must make an express finding of willful failure to comply with discovery before a terminating sanction may be imposed. (Midwife v. Bernal (1988) 203 Cal.App.3d 57, 63, superseded by statute as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971; Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787, superseded by statute on another point as stated in Guzman v. General Motors (1984) 154 Cal.App.3d 438, 444.) However, these cases were decided under the previous discovery statutes, which required a finding of willfulness before any sanction, monetary or otherwise, could be imposed. (Kohan v. Cohan, supra, 229 Cal.App.3d at p. 971.) Because the current Civil Discovery Act no longer requires the misuse of the discovery process to be willful, willfulness is no longer a prerequisite for the imposition of monetary sanctions. (Ibid.)
Since the discovery statutes no longer require a finding of willfulness before sanctions may be imposed, cases decided under the prior discovery statute, which required the trial court to make an express finding of willfulness, are no longer controlling. Instead, where there is not an express finding of fact or statement of decision, we imply findings to support the ruling below if they are supported by substantial evidence. (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238, overruled by statute on another ground as stated in In re Marriage of O’Connor (1997) 59 Cal.App.4th 877, 882.)
2. There is Substantial Evidence of Willfulness
Courts have continued to hold that willfulness is a prerequisite for the imposition of non-monetary sanctions, even under the present Civil Discovery Act. (Biles v. Exxon Mobile Corp. (2004) 124 Cal.App.4th 1315, 1327.) We therefore operate under the assumption that willful failure to provide discovery is a prerequisite to the imposition of terminating sanctions, though a trial court’s finding of willfulness may be implied rather than express. When determining whether there is substantial evidence to support an implied finding, we review the evidence in the light most favorable to the respondent, accepting as true all evidence favorable to the respondent and discarding all contrary evidence. (In re Marriage of Aninger, supra, 220 Cal.App.3d at p. 238.)
Willfulness in this context means a “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance . . . .” (Deyo v. Kilbourne, supra, 84 Cal.App.3d at pp. 787-788.) Willfulness does not necessarily mean a wrongful intention to disobey discovery, but merely a conscious and intentional failure to act. (Ibid.) Lack of diligence may also be willful if the party understood his obligation and had the ability to comply, but failed to comply.
(Id. at p. 787.)
There is substantial evidence in the record that defendant’s failure to comply with discovery requests was conscious or intentional as opposed to accidental or involuntary. Defendant did not file responses to discovery by the court-extended deadline of December 20, 2004, even though he indicated to the court that this one-time, three week extension of time would allow him to prepare adequate, thoughtful responses to the requested discovery. Defendant did not respond to plaintiff’s subsequent efforts to obtain the delinquent responses and to schedule defendant’s deposition. Plaintiff was forced to bring a motion to compel defendant’s responses. The trial court ordered defendant to serve its responses, without objection, by April 15, 2005. In violation of this order, defendant did not serve his responses to interrogatories until April 21, and those responses were unverified, unresponsive, and laden with objections. This pattern of abuse of the discovery process indicates defendant’s failure to comply with the discovery requests was neither accidental nor involuntary.
Defendant’s claim that the record supports no finding of willfulness boils down to two arguments: (1) his further responses were timely and gave the requested information, and (2) his mental illness prevented him from responding to the voluminous discovery requests. The first argument is simply unfounded. The further responses were not timely, and instead of giving meaningful information, were full of objections and repetitions. The responses given were largely meaningless in relation to the questions. The responses were not signed under oath. Unverified answers are legally invalid. (Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal.App.3d 481, 489, disapproved of on another point in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.)
The second argument also does not withstand scrutiny. Defendant did not raise his mental illness as an excuse for his inability to prepare answers to discovery on time in his original motion for an extension of time to respond to discovery. Instead the focus was on the “sizeable” nature of the discovery and defendant’s attorney’s busy schedule. Nor did he raise his mental illness when arguing against plaintiff’s motion to compel responses. Instead, his arguments focused on the defects in plaintiff’s motion. Only when faced with plaintiff’s motion for terminating sanctions did defendant raise his mental health issues to argue they had complicated his ability to respond to the discovery. But defendant never moved for a protective order, which would have been the correct course of action if, in fact, responding to plaintiff’s “voluminous discovery requests” was too burdensome because of his mental illness, as he now claims.
A court may grant a protective order where “justice requires to protect any party . . . from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (§ 2030.090, subd. (b), see § 2017.020, subd. (a), § 2019.030, subd (a).)
We conclude the evidence, viewed in the light most favorable to plaintiff, is sufficient to support a finding that defendant willfully failed to respond to discovery.
B. No Abuse of Discretion
Defendant offers four reasons for his assertion that the trial court abused its discretion in ordering terminating sanctions. First, he sets forth a number of facts he claims the trial court did not consider in making its ruling. Second, he claims the sanctions were improperly designed to punish him. Third, he argues plaintiff was not prejudiced by the discovery violations. Fourth, he claims the law prohibits placing a party in a better position than if the discovery had been properly given. We find no merit to any of his claims.
1. Trial Court’s Consideration of Facts
Defendant recounts his version of the facts again, and asserts the trial court failed to consider this evidence in imposing terminating sanctions, but this is nothing more than his substantial evidence argument in a slightly different posture. The ruling on the motion does not support the conclusion that the trial court did not consider all the relevant facts, only that the trial court granted plaintiff’s request for terminating sanctions. Since neither party requested a statement of decision from the trial court, we must presume the facts support the trial court’s judgment, and that the trial court considered all relevant evidence. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645.)
2. Sanctions Not Designed to Punish
Defendant argues that the court may not impose sanctions designed to punish rather than to accomplish the objects of the discovery law, but this rule does not govern where the sanctioned party has yet to provide the requested discovery. The rule arises from the theory that terminating sanctions which are imposed as a result of a party’s failure to provide discovery are not a violation of the party’s due process rights because the refusal to provide discovery is an admission that the party’s position lacks merit. (Midwife v. Bernal, supra, 203 Cal.App.3d at p. 64.) Accordingly, a court may not impose terminating sanctions against a party who has supplied the requested discovery and the only remaining violation of the discovery laws is the party’s failure to pay monetary sanctions, or where the party’s failure to provide discovery relates to only a portion of the case. (Id. at pp. 64-65; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305.)
However, where, as here, the defendant’s failure to provide meaningful discovery affected the entire case, and was not a mere failure to pay monetary sanctions, the court acted within its considerable discretion in ordering terminating sanctions. Defendant argues the answers he provided were extensive and served the purpose of discovery, and that the trial court and the plaintiff should have simply ignored his discovery objections. The trial court apparently found otherwise, and our review of the record convinces us that this conclusion was well-founded.
3. Plaintiff Need not Show Prejudice
Defendant asserts plaintiff has not shown it was prejudiced by his failure to produce discovery, but the party requesting sanctions need not show prejudice where the discovery requested bears directly on the pleadings. For example, in Morgan v. Ransom (1979) 95 Cal.App.3d 664, 667, cited by defendant, the court reversed a terminating sanction where the plaintiff was alleged to have failed to answer a single interrogatory. The court of appeal reversed the order of dismissal in part because it found the interrogatory had no bearing on any issue raised by the pleadings. (Id. at pp. 669-670.) By contrast, the discovery remaining unanswered here was not a single interrogatory, but most of the discovery requested by plaintiff, and the bulk of the discovery requested was specifically directed at the affirmative defenses defendant pled in his answer. In such circumstances, the plaintiff had no obligation to demonstrate prejudice when seeking terminating sanctions.
4. Plaintiff Not in Better Position Than if Discovery Had Been Answered
Defendant states the rule from Deyo v. Kilbourne, supra, that a prevailing party may not be put in a better position than if discovery had been obtained, but fails to restate the entire rule. The above case held that where a motion to compel has been previously granted, a discovery sanction may not “operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (84 Cal.App.3d at p. 793, italics added.) The rule operates where the discovery violations relate only to a part of the case. (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958-959.)
In this case, the discovery violations concerned the entire case. Had defendant answered all of the discovery, and had his answers been completely favorable to plaintiff’s cause, plaintiff would have been entitled to summary judgment in its favor. Consequently, there was no abuse of discretion.
II
Attorney Fees
The trial court made a post-judgment award of attorney fees to plaintiff in the amount of $142,151.50. Although defendant’s opening brief argues there was no basis for the award or the amount of attorney fees, we shall conclude the order allowing attorney fees is not reviewable because defendant did not give timely notice of an appeal from this separately-appealable post judgment order.
Plaintiff was prepared to address the issue of attorney fees at the prove up hearing before entry of default judgment, but the trial court insisted plaintiff bring a post judgment motion for attorney fees and give defendant notice of the motion. Thereafter, on October 27, 2005, the trial court entered its default judgment, awarding plaintiff the sum of $646,621.88, plus interest, along with “costs and disbursements comprised of $2,609.14 in clerk’s filing fees, $558.90 in process server’s fees, and $10,395.10 in monetary sanctions previously awarded by the court . . . .” The judgment did not mention attorney fees as an element of costs or in any other manner. Plaintiff noticed its motion to fix attorney fees as an item of costs a few days later.
Defendant filed his notice of appeal on December 27, 2005, appealing only from the October 27 default judgment. Specifically, the notice stated that defendant “hereby appeals from the Default Judgment by Court on or about October 27, 2005. [¶] Notice of Entry of Judgment was served by mail by Plaintiff on October 28, 2005.” By the time defendant filed his notice of appeal, the hearing on plaintiff’s motion to fix attorney fees had been heard, but the trial court took the matter under submission and did not issue its ruling until approximately three months later, on March 1, 2006. The attorney fees awarded by the court were then incorporated into an amended default judgment, filed March 17, 2006, notice of which plaintiff served on defendant March 20, 2006.
Defendant did not file another notice of appeal of the amended judgment. The first indication defendant gave that he intended to appeal the post judgment order awarding attorney fees was on June 6, 2006, when defendant filed a motion with this court to augment the record to include the amended judgment, although even this motion did not state that defendant would be appealing the post judgment award of attorney fees.
Where a party’s entitlement to attorney fees is not part of an award of damages, but is litigated by way of a motion to fix or tax costs that is deferred until after judgment, any award regarding fees is separately appealable. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 45 (Praszker).) If no timely appeal is filed, the appellate court has no jurisdiction to review the award. (Ibid.) Defendant’s notice of appeal specifically references only the October 27, 2005, default judgment, which did not include an award of attorney fees. Even if we liberally construe defendant’s motion to augment the record to include the amended default judgment as notice of an appeal from that judgment, it would not be timely. Notice of appeal must be filed 60 days after service of a notice of entry of judgment. (Cal. Rules of Court, rule 8.104 (a)(1).) The notice of entry of the amended default judgment was served on defendant on March 20, 2006, but his motion to augment the record was not filed until June 6, 2006, 78 days later.
Defendant, citing Grant v. List & Lathrop (1992) 2 Cal.App.4th 993 (Grant), argues the attorney fees, which were allowed as an item of costs, are properly before this court because the original default judgment awarded costs. Unlike the instant case, the judgment appealed from in Grant specifically provided for an award of attorney fees, but left the amount of the award blank for later completion. (Id. at p. 996.) Also in that case, the notice of appeal expressly challenged the appropriateness of awarding fees. (Id. at p. 997.)
The Grant holding has been held to be limited to situations in which the original judgment expressly determines the entitlement to attorney fees, leaving only the amount of the fees to be determined, a situation not present here. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 44.) As explained in Praszker, supra, an award in the original judgment of costs and disbursements or costs and fees does not encompass subsequently awarded attorney fees because the party’s entitlement to those fees is not determined until the later proceeding. (Praszker, supra, 220 Cal.App.3d at p. 46, fn. 4.) Such an interpretation would subsume the rule that postjudgment orders on attorney fees must be separately appealed because virtually all judgments provide for costs to the prevailing party. (Ibid.)
No timely appeal of the postjudgment order awarding attorney fees having been filed in this case, we do not consider defendant’s arguments challenging the award of attorney fees.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded plaintiff. (Cal. Rules of Court, rule 8.276 (a)(1).)
We concur: RAYE, J., HULL, J.