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In Saturday’s mail I received a case from Burlingame lawyer, Michael Liberty, titled Clement v. Alegre(2009) 177 CA4th 1277 (pdf) with an FYI note. I read the case with fascination as it sums it all up when it comes to garbage objections and sanctions.

In this case, defendant sent 23 Special Interrogatories to each of the plaintiffs. The interrogatories requested information on damages, and the existence of a loan commitment. Plaintiffs answered three of the interrogatories and objected to the remaining twenty. The interrogatories fell into two categories as shown below:

Special Interrogatory No. 1 requested a description of “all economic damages you have sustained . . . ” Plaintiffs objected on the grounds of “vague and ambiguous” because defendant hadn’t specifically referred to Civil Code Section 1431.2(b)(1), which defines “economic damages.”

Special Interrogatory No. 2 asked “Please state the amount of such damages identified in Interrogatory No. 1.”  Plaintiffs objected on the grounds that the special interrogatory was not complete in itself and because he has 30 days to answer No. 1 so he should have another 30 days more to answer Interrogatory No. 2.

Nine months after the Special Interrogatories were propounded, the Discovery Referee, found that the plaintiffs had “deliberately misconstrued the question” as to economic damages and determined that “the objections and each of them to be unreasonable, evasive, lacking in legal merit and without justification“. Clement at 1284  The Referee recommended that the motion to compel further responses be granted and that plaintiffs were to reimburse defendant $4,950.00 for legal fees, $40 for filing the motions to compel and $1,642.50 for defendants portion of the Discovery Referee’s fees for a total sanction of $6,632.50. The trial court agreed with the recommendation.

The First District Court of Appeal had no sympathy for plaintiffs appeal stating in its opening discussion:

Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 . . .  a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing.  More than 10 years ago, Townsend v. Superior Court(1998) 61 CA 4th 1431 (pdf) lamented the all too often interjection of “ego and emotions of counsel and client[s]” into discovery disputes, warning that “[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement.”  (Townsend at 1436.) Townsend counseled that the “informal resolution” of discovery disputes “entails something more than bickering with [opposing counsel].” (Townsend at 1439) Rather, the statute “requires that there be a serious effort at negotiation and informal resolution.” (Townsend. 1438.)

This case illustrates once again the truth of Townsend‘s observations, as well as highlighting the lengths to which some counsel and clients will go to avoid providing discovery(in this case by responding to straightforward interrogatories with nit-picking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party, and his counsel.  [Emphasis added]

The First District Court of Appeal affirmed the Discovery Referee’s order awarding sanctions and gave the following admonishment:

…we feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone’s admonitions in Townsend ‘the statute requires that there be a serious effort at negotiation and informal resolution (Townsend at 1438) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]rgument is not the same as informal resolution’ (id at p. 14370; and that a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend at 1439) [Emphasis added]

In the year since Clement v. Alegre was published it has been cited in two unpublished Appellate Court decisions, six Code of Civil Procedure annotations, seven different treatises and three appellate briefs.  This is one case you should keep in your arsenal when you are requesting sanctions.

I thank Mike Liberty for forwarding me this case. Please forward me any other discovery cases or issues that you would like to be discussed.