Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00113232, Kazuharu Makino, Judge.
William A. Kent, in pro. per., for Objector and Appellant and for Plaintiff and Appellant.
Yocis & Cox and Stephen M. Smith for Defendant and Respondent.
OPINON
FYBEL, J.
INTRODUCTION
Plaintiff and appellant Winly Mallard, while represented by her attorney, objector and appellant William A. Kent, filed a verified complaint against her insurer, defendant Progressive Choice Insurance Company (Progressive), alleging Progressive wrongfully failed to pay certain medical expenses under an automobile policy it issued to her. Progressive propounded requests for admission to Mallard, requesting, inter alia, she admit that Progressive made certain medical payments under the policy; Mallard denied each of the requests.
Progressive also propounded form interrogatory No. 17.1 to Mallard, which asked whether her denials to the requests for admission were qualified, and, for each qualified denial, required her to state all the facts upon which she based her denial and to identify persons with knowledge of such facts and documents supporting her response. Although Mallard’s response showed all but one of her denials to the requests for admission were qualified, her response to form interrogatory No. 17.1 simply stated that after “a reasonable investigation, ” she had “no knowledge of the truthfulness of the said request” and that “upon information and belief, ” she believed Progressive has not paid the $5,000 maximum for medical payments coverage under the policy.
The trial court granted Progressive’s motion to compel Mallard to provide further responses to form interrogatory No. 17.1, and entered judgment in the amount of $1,090 in sanctions against Kent. Mallard argues the trial court erroneously granted the motion to compel, and Kent argues the trial court’s sanction award constituted an abuse of discretion.
We affirm. Mallard’s response to form interrogatory No. 17.1 was evasive. Although Mallard’s denials to all but one of the requests for admission were qualified, her response failed to state any facts supporting her denials or identify any supporting witnesses or documents. Notwithstanding the allegations of the verified complaint that Progressive failed to pay certain medical bills to health care providers, Mallard’s response solely reiterated she denied the requests for admission due to a lack of knowledge after a reasonable investigation. Mallard’s evasive response to form interrogatory No. 17.1, as prepared by Kent, constituted a misuse of the discovery process within the meaning of Code of Civil Procedure section 2023.010, subdivision (f). The trial court was well within its discretion to impose a monetary sanction on Kent who acted as an “attorney advising that conduct” within the meaning of section 2023.030, subdivision (a). The trial court did not abuse its discretion by either granting the motion to compel or imposing sanctions against Kent.
The facts contained in this background section are based on the verified complaint and the evidence submitted by the parties in connection with Progressive’s motion to compel further discovery.
I.
The Verified Complaint
On October 14, 2008, Mallard filed a verified complaint against Progressive, which alleged Mallard was involved in an automobile accident on April 29, 2005 (the accident) and the accident occurred during the policy period of an automobile insurance policy (the policy) that Progressive had issued to her. The verified complaint further alleged that the policy provided Mallard $5,000 in medical payments coverage, but Progressive did not make $5,000 in medical payments although Mallard incurred more than $5,000 in medical bills due to the accident. The verified complaint stated Progressive failed to pay $2,805 in medical expenses by paying Dr. Conwisar only $1,659 of his total bill of $2,439, by paying Dr. Rudenko only $1,870 of his total bill of $3,375, and by not paying any of Dr. Yarmo’s $245 bill.
The verified complaint contained claims for breach of contract, breach of the covenant of good faith and fair dealing, and bad faith against Progressive, and also contained a request (styled as the fourth cause of action) for the trial court’s appointment of an arbitrator to resolve Mallard’s uninsured motorist claim dispute with Progressive.
II.
Progressive’s Counsel Sends Letters to Kent, Explaining That Progressive Already Made Medical Payments to Mallard’s Health Care Providers, Which Exhausted the Policy’s $5,000 Medical Payments Limit.
In a letter dated November 3, 2008, Progressive’s counsel, Rivers J. Morrell III, informed Kent that Progressive had already made medical payments totaling $5,000 to health care providers who provided medical services to Mallard for injuries she had suffered as a result of the accident. As explained in the letter, Morrell enclosed a copy of Progressive’s “payment screen” for the accident, which showed Progressive had already made $5,000 in medical payments-the maximum coverage under the policy- by paying (1) $564 to the Healing Spa Center; (2) $935 to Dr. Thomas Rudenko; (3) $237 to Adam & Eve Healing Spa; (4) $180 to Dr. Rudenko; (5) $1,710 to Dr. Rudenko; (6) $245 to Yarmo Chiropractic Health Care; (7) $800 to Dr. Rudenko; and (8) $329 to Dr. Philip Conwisar. Morrell asked Kent to advise him if Kent found any error with the provided payment information.
In Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, we affirmed the trial court’s order granting Morrell’s anti SLAPP (strategic lawsuit against public participation) (Code Civ. Proc., § 425.16) motion to strike Mallard’s invasion of privacy and abuse of process claims alleged against Morrell in a separate action. Mallard’s claims were based on Morrell’s conduct of subpoenaing Mallard’s mental health records from third party health care providers for the purpose of preparing Progressive’s defense against Mallard’s uninsured motorist claim. (Mallard v. Progressive Ins. Co., supra, at p. 535.) We affirmed the dismissal of the complaint against Morrell, but reversed the order dismissing the complaint against Progressive because Progressive had not been served in the action, had not appeared before the trial court, and did not make an anti SLAPP motion on its own behalf. (Ibid.) We also affirmed the trial court’s order granting Morrell’s motion for attorney fees under Code of Civil Procedure section 425.16, subdivision (c). (Mallard v. Progressive Ins. Co., supra, at p. 535.)
On November 14, 2008, Morrell sent Kent a second letter in which he asked Kent: “Do [you] have any indication that the $5,000 was not paid, and if so, please advise.” The letter also stated, “[i]n addition, in looking over the file, there is a letter that you sent to Progressive on January 16, 2007, in which you advised that your client had told you that ‘Progressive had paid out some $5,000 in medical bills’ for the 2005 accident. Please advise if your client misinformed you, or just what is going on with this issue. [¶] I am at a loss as to why this complaint has been filed, particularly when it seems clear that all of the med pay limits have been paid.”
Kent sent Morrell a letter dated November 19, 2008, which did not respond to the medical payment information provided by Morrell. Kent’s letter stated in part: “You do not seem to get what I am communicating. I need to see the following: [¶] (1) Copies of all (a) medical reports and (b) bills which you claim to have paid. [¶] (2) I need to see all copies of checks or other proof of payment; [¶] (3) I need to see copies of the two insurance policies (the whole policies). [¶] I have requested this before, not always the same way, but so far have received nothing but generalizations but no evidence or proof.”
III.
Progressive Propounds Requests for Admission and Form Interrogatories, and Mallard Serves Verified Responses; Progressive Moves to Compel Mallard to Provide Further Responses to Form Interrogatory No. 17.1.
On November 25, 2008, Progressive propounded one set of requests for admission and one set of form interrogatories to Mallard. In the requests for admission, Progressive requested Mallard admit (1) she had “$5000 of medical payments coverage” with Progressive under the policy for the accident (request No. 1); (2) Progressive “paid all of the $5000 of medical payments coverage to the medical providers that provided health care to [Mallard] for injuries that are alleged to have occurred as a result of the accident” (request No. 2); (3) Progressive “paid a total [of] $5000 to the health care providers who provided health care to [Mallard] for injuries alleged to have occurred as a result of the accident” (request No. 3); and (4) Progressive “does not owe [Mallard] any monies under the Medical Payments coverage provision with [Progressive] for any health care provided to [Mallard] as a result of the accident” (request No. 13). Request for admission Nos. 4 through 12 asked Mallard to admit Progressive made each of the medical payments identified on the copy of the payment screen provided to Kent along with Morrell’s November 3, 2008 letter.
Progressive concurrently served Mallard with form interrogatories which, as relevant to this appeal, included form interrogatory No. 17.1, which states: “Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: [¶] (a) state the number of the request; [¶] (b) state all facts upon which you base your response; [¶] (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and [¶] (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”
In her verified responses to the requests for admission, Mallard admitted the policy contained a $5,000 limit on medical payments coverage pursuant to request No. 1. Mallard denied request Nos. 2, 3, and 13 and thus denied that (1) Progressive “paid all of the $5000 of medical payments coverage to the medical providers that provided health care to the Plaintiff for injuries” resulting from the accident; (2) Progressive “paid a total [of] $5000 to the health care providers who provided health care to the Plaintiff for injuries” resulting from the accident; and (3) Progressive does not owe her any money under the medical payments coverage provision of the policy. As for request for admission Nos. 4 through 12, Mallard responded: “Plaintiff is without knowledge of the alleged allegation after a reasonable investigation and therefore denies the request.”
Mallard’s verified response to form interrogatory No. 17.1 stated in full: “17.1. (2) (12). Plaintiff after a reasonable investigation has no knowledge of the truthfulness of the said request for admissions as to the Request for Admissions 2 12 and therefore must deny, and does hereby deny, them. (13). Plaintiff after a reasonable investigation, and upon information and belief, believes that monies is owed and has therefore denied the request for admission No. 13.”
Morrell sent Kent two meet and confer letters explaining that Mallard’s response to form interrogatory No. 17.1 was incomplete, particularly in light of the allegations of the verified complaint, and that further responses were required. After Mallard failed to provide further responses, Progressive filed a motion to compel further responses to form interrogatory No. 17.1 (the motion), in which Progressive also sought an award of monetary sanctions against Mallard and Kent in the amount of $1,090 which constituted the reasonable attorney fees and other expenses Progressive incurred in connection with the motion to compel.
IV.
After a Hearing, the Trial Court Granted the Motion and Ordered Sanctions Against Kent and Mallard; Judgment Is Entered Solely Against Kent for $1,090 in Sanctions.
Before the hearing on the motion, the trial court announced its tentative ruling to grant the motion, to order Mallard to serve further verified responses without objections to form interrogatory No. 17.1 as to request for admission Nos. 2 through 13 within 20 days, and to order sanctions in the amount of $1,090 against Mallard and Kent, “jointly and severally.”
At the hearing on the motion, Kent did not argue against the tentative ruling to grant the motion, but instead argued the court should not award sanctions. He stated Mallard was “totally disabled” and “has no knowledge of anything.” Kent stated he “made up a complaint and... made some inquiries, ” and that “look[ing] back, ” he made a mistake in that he “had some hearsay information and [he] put that in the complaint, and [he] didn’t say ‘on information and belief.’”
The trial court stated to Kent, “you file a verified complaint, [Mallard]’s swearing all this is true, you’re saying basically no she doesn’t really know if it’s true. But you put it there for her to sign, and so now she’s signed something that’s true that you’re saying she doesn’t really know if it’s true.” Kent responded, “[w]ell, Your Honor, you have a mentally disabled client.” The court asked Kent, “[a]nd she filed a verified complaint saying I know this, and you’re telling me, no, she doesn’t know this?” Kent responded, “[n]o. I prepared the complaint, Your Honor.” Kent stated he was “willing to put down the basis for why [he] was unable to respond other than the way [he] did” and “to put down a more complete basis.”
Shortly thereafter, the court and Kent engaged in the following discussion:
“The Court:... The ruling is going to be as indicated in the tentative. This is all information that you could have conveyed to the other side to see if something could be worked out, but what you do is you respond and simply say I have no knowledge. And you could have-I mean, you could have just sent them a letter saying, you know what, she is mentally ill, she really didn’t know, I was the one who did all this, and she can’t answer these questions because she doesn’t know. And I should have never filed a verified complaint, that was my mistake, she doesn’t know any of this stuff.
“Mr. Kent: That’s true, Your Honor.
“The Court: Right, and you didn’t do any of that.
“Mr. Kent: Well[, ] I had outstanding discovery. I had asked for the checks on November 25th.
“The Court: It doesn’t matter. It doesn’t matter. This is from what you filed in your complaint. They have a right to rely on your complaint, just like if they file something under penalty of perjury, verify something, you have a right to rely on that being true. They don’t get to come in later and say well now that you’re doing something, relying on my statement, then I’m going [to] tell you no that’s not really true. Okay. You don’t get to do that.
“Mr. Kent: I made a mistake.
“The Court: Okay.
“Mr. Kent: And I would like to try to correct that record by filing a motion to amend the complaint so I’ll put down information and belief.
“The Court: Well, okay. You can do what you feel appropriate, but the motion is going to be granted as indicated in the tentative. Sanctions will be ordered. And you say it’s your fault, you pay it, then she doesn’t have any obligation for it. Okay.
“Mr. Kent: I said it was an inadvertent mistake, Your Honor. It wasn’t the type of mistake I think I should be really penalized for.
“The Court: Okay. Well[, ] that’s the ruling of the court.”
In May 2009, judgment was entered in the amount of $1,090 against Kent and in favor of Progressive (the May 2009 judgment); the May 2009 judgment did not state that judgment was entered against Mallard as well.
In July 2009, the trial court granted summary adjudication in favor of Progressive as to Mallard’s breach of contract, breach of the covenant of good faith and fair dealing, and bad faith causes of action after finding Progressive had “fully satisfied its contractual obligations under the medical payments provision” of the policy; Mallard’s claim for uninsured motorist coverage was the only claim that remained unresolved. In October 2009, Kent and Mallard filed a notice of appeal.
DISCUSSION
I.
Appealability
In its respondent’s brief, which was filed on March 22, 2010, Progressive argues the appeal was prematurely filed because the trial court had not entered a final judgment in the case. On our own motion, we augment the record on appeal with the judgment filed in the trial court on April 27, 2010 in Mallard v. Progressive Choice Insurance Company (Super. Ct. Orange County, 2010, No. 30 2008 00113232), following the arbitrator’s award in Progressive’s favor as to Mallard’s claim for uninsured motorist coverage. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We therefore need not decide whether the May 2009 judgment constitutes an appealable final judgment because, even if it were not, we may treat the notice of appeal as having been filed immediately after entry of the final judgment in the matter. (Id., rule 8.104(e)(2).) We therefore turn to consider the merits of Mallard and Kent’s appeal.
II.
The Trial Court Did Not Err by Granting the Motion.
At the hearing on the motion, Kent did not challenge the trial court’s tentative ruling to compel Mallard to provide further responses to form interrogatory No. 17.1. After the trial court pointedly asked Kent, “[w]hat is it you’re getting at, that the motion shouldn’t be granted, that the sanctions shouldn’t be imposed, both?” Kent responded, “[w]ell[, ] I’m asking that the sanctions not be imposed.” The opening brief, however, states, “[t]he court below committed an abuse of discretion by granting Progressive’s motion to compel and by imposing sanctions of $1090.00.” (Italics added.)
Even assuming the argument that the motion was improperly decided has not been waived, any such argument is without merit. “A trial court’s determination of a motion to compel discovery is reviewed for abuse of discretion.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
Form interrogatory No. 17.1 required that Mallard state, for each qualified denial she provided to the requests for admission, “all facts upon which [she] base[d her] response, ” and the names and contact information for each person who had knowledge of those facts, and identify all documents that supported her response. Mallard was asked to admit that Progressive made medical payments to various health care providers through request for admission Nos. 2 through 12. She was also asked to admit through request No. 13 that Progressive was not obligated to make any further medical payments under the policy.
Mallard’s responses to the requests for admission either denied the request outright or denied the request on the ground that after a “reasonable investigation, ” she was “without knowledge of the alleged allegation.” Although the verified complaint specifically alleged Progressive failed to make $2,805 in medical payments it was required to pay under the policy to certain medical providers including Dr. Conwisar, Dr. Yarmo and Dr. Rudenko, in response to form interrogatory No. 17.1, Mallard simply repeated her denials, qualified on her lack of knowledge after a “reasonable investigation.” She failed to identify any facts, witnesses, or documents and did not even identify the three health care providers mentioned in the verified complaint. At the hearing on the motion, Kent informed the trial court that in preparing the complaint, he used “some hearsay information, ” but even that information was not provided in response to form interrogatory No. 17.1. The trial court did not abuse its discretion in ordering Mallard to provide further responses.
III.
The Trial Court Did Not Abuse Its Discretion by Awarding Monetary Sanctions Against Kent.
“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process.’ (Code Civ. Proc., § 2023.030; Cedars Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12....) As relevant here, misuses of the discovery process include... ‘[m]aking an evasive response to discovery’ ([Code Civ. Proc.], § 2023.010, subd. (f)).” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Code of Civil Procedure section 2023.030, subdivision (a) provides in relevant part: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Italics added.) Section 2023.030 does not require Progressive to move to compel further responses before seeking monetary sanctions. (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 8:1186, p. 8F 73 (rev. # 1, 2009) [prior order to comply with discovery is not a prerequisite to the issuance of monetary sanctions on a motion to compel discovery]; see Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1561 [the defendants not required to move to compel deposition responses before seeking monetary sanctions pursuant to Code of Civil Procedure section 2023.030].)
“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ‘“attempt[] to tailor the sanction to the harm caused by the withheld discovery.”’ [Citation.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citation.]” (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992.)
Mallard’s response to form interrogatory No. 17.1 was evasive at best, particularly in light of the allegations of the verified complaint in which Mallard specifically alleged Progressive’s failure to make medical payments to certain health care providers under the policy. Her failure, in responding to form interrogatory No. 17.1, to provide any facts or identify any witnesses or documents, which would support or explain her qualified denials to request for admission Nos. 2 through 13, and her denial that Progressive had already paid $5,000 in medical payments under the policy, was patently unreasonable.
The record shows Progressive’s repeated attempts to resolve any misunderstanding about its medical payments before the requests for admission and form interrogatories were served; Mallard, however, failed to provide Progressive with any factual or evidentiary basis for her claims that Progressive had not made $5,000 in medical payments on her behalf. After Progressive received Mallard’s responses to the requests for admission and the form interrogatories, Progressive twice requested further responses from Mallard as to form interrogatory No. 17.1; Mallard failed to provide further responses. At the hearing on the motion, Kent informed the trial court that he prepared the verified complaint, based on information he had gathered, of which Mallard had no knowledge. Kent’s factual basis in preparing the verified complaint was not included in Mallard’s response to form interrogatory No. 17.1. (Smith v. Superior Court (1961) 189 Cal.App.2d 6, 1112 [a party must disclose nonprivileged facts known to the party’s lawyer, such as the names of witnesses and the existence of documentary evidence, even if the party has no personal knowledge of such facts].)
The trial court did not abuse its discretion by awarding Progressive the attorney fees and costs it incurred in bringing the motion. Kent does not argue the amount of sanctions was unreasonable.
We find no error.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.