That is what the Eighth Division of the Second District Court of Appeal said in their opinion in Beth Field v. U.S. Bank National Association B309111 filed on June 9, 2022.  The Court of Appeal went further and said “You likewise harm your own prospects if ever you hope for a fee award.  (See Karton v. Ari Design & Construction Inc. (2021) 61 Cal.App.5th 734, 747 [attorney unprofessionalism justifies reducing fee awards].)”

The facts in Field are straightforward.  Plaintiff Field brought a wrongful foreclosure action against a bank and the servicer, Rushmore Loan Management Ser vices, LLC. referred to in the opinion as the “Rushmore” Defendants.  Rushmore served Plaintiff Field with Special Interrogatory #16 which stated:

Do YOU contend that the [Notice of Trustee Sale] that YOU reference in paragraph 15 of the [Second Amended Complaint] was not mailed to YOU in compliance with California Civil Code section 2924b?  If so, then please provide all facts RELATED TO this contention. 

[Answer:] Unsure.

Defendants moved for summary judgement not merely on a lack of evidence, but presenting facts demonstrating that the foreclosure was sound.  In opposing the motion, Field sought to create a triable issue of fact, by disputing proper service of the Notice of Trustee Sale, by contradicting “her discovery response about being “Unsure”: now she was sure, and she swore she never received the notice”  with her declaration with her opposition to the motion. The trial court granted the motion for summary judgment and the Court of Appeal affirmed the ruling finding Field’s “Unsure” response and later attempt to change that answer in opposition to the Summary Judgment Motion as an abuse of discovery. Boiled down, the Court of Appeal said that a party is entitled to rely on verified discovery responses. The Court went on to state:

It was unjust and improper for Field to swear during discovery she was “[u]nsure” whether Rushmore’s notice was proper but then to contradict this position during summary judgment by swearing the notice was improper because she never got it. 

Code of Civil Procedure section 2030.310 provides a mechanism for parties to amend responses to interrogatories under certain circumstances, yet Field did not attempt to amend.   

A party opposing summary judgment may not move the target after the proponent has launched its arrow.  Rushmore’s contention interrogatory sought to pin down Field’s abstract theory of wrongful disclosure by getting her to specifics.  Field’s one-word answer was “Unsure.”  This response was too clever by half.  Field had to be diligent and straightforward in responding to discovery.  (Code Civ. Proc., § 2030.220, subds. (a)–(c).) 

She could not feint with “Unsure” and then later seek to create a disputed issue of fact with assertions she had failed to formulate or to disclose during discovery. 

(See Code Civ. Proc., § 2023.010 subd. (f) [evasive responses are sanctionable]; cf. Cohen, supra, 35 Cal.App.5th at pp. 17–19 [you cannot change your story to avoid summary judgment].)  Parties prepare interrogatory answers with the assistance of counsel, which justifies a broad duty of response.  (Edmon & Karnow, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1053 (Edmon & Karnow).)

 Field is right her response of “Unsure” was ambiguous.  Her ambiguity, in which counsel participated, is the problem.  Mail service is imperfect, but a claim of failure to receive something implies failure in the sending.  Field’s contention she did not receive notice was a necessary response to the interrogatory.  To suggest otherwise when asked for “RELATED” facts is to misconstrue the question deliberately.  (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [do not deliberately misconstrue the question in order to supply an evasive answer].)  

Rushmore asked a simple question to clarify Field’s position.  Field replied with a cryptic non-answer that could achieve only obfuscation.  But the Legislature intended our discovery statutes would take the game element out of trial preparation.  (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) 

Trial courts encountering such an abuse are free to disregard a later declaration that hopes to supplant tactical or slothful ambiguity with tardy specificity. 

(Cf. Edmon & Karnow, supra, at ¶ 8:1050.10 [“Caution—incomplete answers may expose responding party to summary judgment: ‘Factually devoid’ interrogatory answers may come back to haunt the responding party if the opposing party moves for summary judgment.” (Italics omitted.)].)

Field offers a variant of this same argument by saying her failure to receive notice of the trustee’s sale prevented her from tendering the balance she owed Rushmore.  This branch falls with the tree: Field’s untimely and contradictory effort cannot support any attack on this grant of summary judgment, which was proper.

This is a welcome opinion for every lawyer who deals honestly and diligently during discovery, only to be forced to contend with an opposing party’s evasive responses, garbage objections, and abusive discovery tactics.

Recently I was contacted by an attorney who asked

“When does the 45 days to bring a motion to compel further responses to RPD begin? Is it when they serve their written response with an asserted privilege, or when they produce documents? The issue is over an asserted attorney client privilege. They produced redacted documents, no privilege log yet.” Continue Reading Does the 45-Day Rule Apply when no Privilege Log was Served?

Have you ever been in any of these situations?

Ten days after your client was served with the summons and complaint, the client was personally served with Form Interrogatories, 35 specially prepared interrogatories, 35 requests for admissions and 50 document requests.

Days after an unsuccessful mediation, you are served with 75 requests for admission, 60 special interrogatories, Form Interrogatory #17.1 and 100 requests for documents.  A Declaration of Necessity was served with the discovery.

Eleven days before the close of discovery, opposing counsel hand serves you with a Person Most Knowledgeable/Custodian of Records Deposition Notice with 27 separate categories for testimony and 67 requests for documents.

In each of these situations the discovery propounded was proper according to the Code of Civil Procedure. Continue Reading WHEN YOU GET BOMBARDED WITH DISCOVERY…

Co-Written with Suzanne Martin, Esq.,  Director of National Accounts for Centext Legal Services.

The COVID-19 pandemic has fundamentally changed the way in which depositions are conducted.  Most depositions throughout California are now conducted remotely, on virtual conferencing platforms, rather than in person, which was the modus operandi for so long. This change has brought some major benefits for counsel, witnesses, and the court reporters/videographers who are critical to the proceeding: there is much greater flexibility for all involved, as they are no longer required to travel to and from their offices or homes for each deposition, they do not need to carry their files or equipment to and from the deposition location, and they can now “attend” from anywhere, at any time, with a reliable internet connection.  Running late, stuck in traffic, and transit delays are all avoided.  Here in the Bay Area, that has been an enormous benefit simply in the efficient management of time, avoiding the ever-frustrating Bay Area freeways or less-than-reliable public transportation networks.  Virtual depositions, when counsel and witnesses are prepared and their connections are vetted, promote greater efficiency and result in less time overall to complete the examination.  Depositions tend to start on time, breaks tend to be shorter, distractions are minimized, and the preparation and management of the exhibits is streamlined.

Continue Reading What Lawyers are Getting Wrong in Virtual Depositions

 

Many lawyers use the terms “supplemental expert” and “rebuttal expert” interchangeably, but, according to the Discovery Act, they are very different. A supplemental expert  is one that was disclosed twenty days after experts have been disclosed and is pursuant to Code of Civil Procedure section 2034.280 and is allowed to provide expert testimony. However, a rebuttal expert’s testimony is limited to rebutting or contradicting an opponent’s  expert’s “foundational facts” that form the basis of their opinion. Continue Reading Rebuttal Expert Witnesses—Do you know how to use them?

If a party failed to serve their expert disclosure statement on time, they may bring a motion pursuant to C.C.P §2034.710 for an order to submit a tardy expert witness list.  This section titled Power of Court to Allow Motion to Submit Tardy Expert Witness states:

(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.

(b) A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section  § 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Continue Reading So, You Forgot to Serve Your Expert Disclosure – Now What?

In Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, the Court of Appeal stated that where counsel retains an expert consultant with confidential information concerning the opponent’s case, there is a rebuttable presumption that the expert shared that confidential information with the counsel that retained him or her, which requires disqualification. See Evid Code §606 on the effect of a presumption. To prevent disqualification, the presumption must be rebutted with an affirmative evidentiary showing that no confidential materials were transmitted. This showing has been met by including the writings that were transmitted and what topics were discussed verbally, which would demonstrate that the offending material was not transmitted. However, be mindful that it is not just the precise materials, but also the benefit of the confidential materials that must be rebutted: Continue Reading The Other Side Retained My Consultant – Should They Be Disqualified?

On July 29, 2021, in the case of Braganza v. Albertson’s LLC, (2021) 67 Cal. App. 5th 144, the Fourth District Appellate District affirmed the trial court’s denial of Plaintiff’s motion to continue the hearing for a Motion for Summary Judgment and thereafter granting the defense’s motion. The key: Plaintiff’s counsel sought the continuance on the ground that she needed additional discovery to oppose the motion but did not demonstrate diligence in timely conducting discovery before seeking the continuance. Continue Reading You Must be Diligent in Discovery to get a MSJ/MSA Continued

Sometimes, when you follow the rules regarding the expert witness demand and the initial expert witness disclosure and declaration and are now in receipt of opposing party’s expert disclosure, you find that the opposing party plans to call experts at trial in a subject area which you assumed wouldn’t require expert testimony, or that you hadn’t anticipated. If you didn’t disclose experts on the subject, you can serve a Supplemental Expert Disclosure within 20 days of the exchange of expert witness disclosure. Continue Reading I didn’t know I needed an expert on that…

If a party has timely served a Demand for Simultaneous Exchange of Expert Trial Witness Information pursuant to Code of Civil Procedure section 2034.210, then “all parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand.”C.C.P. §2034.260(a). Unless there is a court order specifying otherwise, that date for the simultaneous exchange is 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date. C.C.P. §2034.230(b).

Continue Reading 50 Days Before Trial—It’s Expert Disclosure Time