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.