Filed 7/6/26 Croft v. Liberty Mutual Fire Ins. Co. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CURTIS CROFT, B339589
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV40504)
v.
LIBERTY MUTUAL FIRE
INSURANCE COMPANY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael C. Small, Judge. Reversed and
remanded with directions.
Sheppard, Mullin, Richter & Hampton, Scott Sveslosky,
Robert A. Sanders, Andrea Feathers, and Matthew G. Halgren,
for Defendant and Appellant.
Schwimer Weinstein, Michael E. Schwimer, and Mitchell E.
Rosensweig, for Plaintiff and Respondent.
Defendant Liberty Mutual Fire Insurance Company
(Liberty) appeals from an order imposing terminating and
monetary sanctions against it. The court based its order on a
finding that Liberty violated three court orders requiring it to
produce the unredacted contents of a claim file to plaintiff Curtis
Croft. The record does not support that finding. We reverse and
remand.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2019, Croft filed a complaint against Liberty
for breach of contract and breach of the covenant of good faith
and fair dealing. Croft alleged he was involved in a car accident
with an underinsured driver. Liberty covered Croft’s vehicle
under an insurance policy that included underinsured motorist
coverage. Croft alleged Liberty failed to investigate his claim and
pay benefits under the policy.
A. The October 2020 Order
In May 2020, Croft served Liberty with his request for
production of documents, set one (“First RFP”). The First RFP
included a request for a “complete copy of the CLAIM FILE”
related to Croft’s uninsured motorist claim (“UIM”) claim. The
First RFP specified, “All documents requested herein refer to the
time period beginning December 1, 2012, up to and including the
present . . .” (Some capitalizations omitted.) Liberty did not
serve a timely response.
Croft filed a motion to compel responses to the First RFP.
Before the hearing, in September 2020, Liberty served its
responses. Liberty stated, “The Requested [claim] file is being
produced. Information related to settlement strategy has been
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redacted as that would prejudice [Liberty’s] ability to mediate.”
In early October 2020, Liberty produced a 167-page claim file
with various redactions.
On October 23, 2020, the trial court heard Croft’s motion to
compel responses to the First RFP. The court found the motion
was moot because Liberty served responses and only the issue of
monetary sanctions remained. It imposed sanctions against
Liberty (the October 2020 order).
B. The March 2023 Order
In December 2020, Croft served Liberty with his request for
production of documents, set two (“Second RFP”). The Second
RFP included a request for a “complete and updated copy of the
CLAIM FILE for the UIM CLAIM.” Liberty timely served
objections to the request for the updated claim file, including an
objection based on the attorney-client privilege, and unverified
responses to other requests. Croft filed a motion to compel
responses to the Second RFP, asserting no substantive, code-
compliant responses had been received.
In February 2021, Liberty moved to compel arbitration
against Croft. The trial court denied the motion. Liberty
appealed, the ruling was affirmed, and the remittitur issued in
December 2022. Liberty obtained new counsel, and the case was
reassigned to a different bench officer.
On March 7, 2023, the trial court heard Croft’s motion to
compel responses to the Second RFP and a motion to compel the
deposition of Daniel Kisiel, the Liberty adjuster who handled
Croft’s claim. The court determined Liberty preserved its
objections to the Second RFP but ordered Liberty to serve verified
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responses within 60 days (the March 2023 order).1 The court also
granted Croft’s motion to compel Kisiel’s deposition, ordering
Liberty to produce Kisiel for deposition within 60 days of the
hearing.
In early May 2023, Liberty served additional responses to
Croft’s Second RFP. It objected to the request seeking the
updated claim file on grounds of attorney-client privilege and the
work-product doctrine. Liberty produced the claim file up to the
date of production and provided Croft with a privilege log
identifying protected documents. Liberty also redacted
information that was previously not redacted when the claim file
was produced in response to Croft’s First RFP in October 2020.
C. The October 2023 Order
In late May 2023, Croft filed a motion to compel Liberty to
comply with the statement of compliance it served in response to
Croft’s First RFP in September 2020. Croft argued that Liberty
had waived any objections to the First RFP and agreed to produce
a copy of the claim file. Croft sought an unredacted copy of the
167-page claim file previously produced in October 2020.
Kisiel’s deposition went forward in June 2023. During the
deposition, Liberty’s counsel objected to questions concerning the
claim file produced in October 2020, asserting the attorney-client
privilege applied, and instructed Kisiel not to answer. Liberty’s
counsel said the claim file had been “produced incorrectly” and
Liberty was “claw[ing]” it back. Croft filed a motion to compel
Kisiel to answer the questions to which his counsel objected.
1 Liberty’s response to the request for an updated claim file
contained objections only.
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On October 18, 2023, the trial court heard Croft’s motion to
compel Liberty to comply with its statement of compliance to the
First RFP and to compel Kisiel to answer deposition questions.
The court noted Croft was seeking “to compel compliance with
what [Liberty] said [it] would do in 2020.” The court granted
both motions and ordered Liberty to produce Kisiel within 60
days (the October 2023 order). The court found Liberty waived
its objections to the First RFP, including those based on the
attorney-client privilege.
In November 2023, Liberty produced a copy of the claim file
and provided a supplemental privilege log for the documents it
redacted. Due to several scheduling conflicts involving Kisiel,
Liberty’s counsel, and Croft’s counsel, the Kisiel deposition did
not go forward until April 2024.
D. Croft’s Motion for Terminating Sanctions
Before Kisiel’s deposition, Croft filed a motion for
terminating and monetary sanctions. Croft argued that Liberty
violated the trial court’s October 2023 order by failing to produce
a complete, unredacted copy of the claim file and making no effort
to produce Kisiel for deposition within the time set by the court.
Croft asserted that Liberty’s history of discovery abuse, which
included violation of the October 2020 and March 2023 orders,
mandated terminating sanctions. In opposition, Liberty argued it
had not willfully violated a court order. Liberty also produced
second and third supplemental privilege logs along with
additional documents. In reply, Croft asserted Liberty violated at
least three orders to produce a complete, unredacted claim file—
specifically, the October 2020, March 2023, and October 2023
orders—and terminating sanctions were warranted because
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lesser sanctions had proven ineffective. The third supplemental
privilege log indicated that only information post-dating the
initial production of the claim file in October 2020 remained
redacted. Liberty asserted the redacted information included
communications with its new counsel.
The trial court granted Croft’s motion for terminating
sanctions. The court concluded Liberty had violated three court
orders to produce an unredacted claim file: the October 2020,2
March 2023, and October 2023 orders. The court noted monetary
sanctions had been imposed against Liberty multiple times for
other discovery “transgressions.”3 The court issued terminating
sanctions against Liberty, struck its answer, and entered its
default. The court also granted Croft’s request for monetary
sanctions “in the form of attorney’s fees in the amount of $6,750
incurred in connection with the motion for terminating
sanctions.” Liberty appealed.
DISCUSSION
A. Dismissal is Not Required
The parties do not dispute that the order directing Liberty
to pay monetary sanctions is appealable. (Code Civ. Proc.,
§ 904.1, subd. (a)(12).) Croft requests that we dismiss the appeal
2 The trial court’s ruling stated that Liberty violated a “March 23,
2020” order. However, the register of actions for the case shows the
trial court did not issue an order on March 23, 2020. The court was
thus presumably referring to the October 2020 order, which was one of
the orders Croft argued Liberty violated.
3 The trial court explained that the basis for granting the motion
for terminating sanctions did not include the failure to produce Kisiel
for deposition within the time ordered by the court because it got done
before the hearing.
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to the extent it also challenges the order’s imposition of
terminating sanctions against Liberty because that part of the
order is not directly appealable. However, the trial court
awarded monetary sanctions solely for the attorney fees incurred
in bringing the motion for terminating sanctions. Liberty
presents no reason for overturning the order imposing monetary
sanctions other than the invalidity of the order imposing
terminating sanctions. Because the propriety of the terminating
sanctions is based on the same conduct and “inextricably
intertwined” with the issue of whether the monetary sanctions
were proper, we may review the merits of the trial court’s order
granting terminating sanctions. (Mileikowsky v. Tenet
Healthsystem (2005) 128 Cal.App.4th 262, 276, overruled on other
grounds in Mileikowsky v. West Hills Hospital & Medical Center
(2009) 45 Cal.4th 1259, 1273.)
B. The Record Does Not Support Terminating
Sanctions
Liberty contends that the trial court based its order
imposing terminating sanctions on an erroneous belief that
Liberty violated multiple court orders concerning production of
the claim file. The record supports this contention.
“California discovery law authorizes a range of penalties for
a party’s refusal to obey a discovery order, including monetary
sanctions, evidentiary sanctions, issue sanctions, and
terminating sanctions.” (Lopez v. Watchtower Bible & Tract
Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) A
trial court has broad discretion in selecting the appropriate
sanction; however, “the courts have long recognized that the
terminating sanction is a drastic penalty and should be used
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sparingly.” (Ibid.) “A trial court must be cautious when imposing
a terminating sanction because the sanction eliminates a party’s
fundamental right to a trial, thus implicating due process rights.
[Citations.] The trial court should select a sanction that is
‘“‘tailor[ed] . . . to the harm caused by the withheld discovery.’”’
[Citation.] ‘“[S]anctions ‘should be appropriate to the dereliction,
and should not exceed that which is required to protect the
interests of the party entitled to but denied discovery.’”’” (Ibid.)
We review a trial court's imposition of terminating
sanctions for abuse of discretion. (Albarghouti v. LA Gateway
Partners, LLC (2026) 119 Cal.App.5th 870, 888.) “The trial
court’s findings of fact that underlie a discovery sanction are
reviewed for substantial evidence. [Citation.] ‘In this regard,
“the power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will
support the determination [of the trier of fact].”’” (Victor Valley
Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th
1121, 1137.)
Here, substantial evidence does not support the trial court’s
finding that Liberty violated multiple court orders to produce an
unredacted claim file. The first order the court referenced in its
ruling was the October 2020 order. This order did not require
Liberty to produce an unredacted claim file. Rather, the court
deemed Croft’s motion to compel responses to his First RFP moot
and ordered Liberty to pay monetary sanctions.
The trial court identified the March 2023 order as the
second order Liberty violated. In relevant part, the order
provided Liberty preserved its objections to Croft’s Second RFP,
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including those made to the request for an updated claim file,4
but required Liberty to serve verifications for its responses. The
court did not order Liberty to produce an updated, unredacted
copy of the claim file.
The third order the trial court identified was the
October 2023 order. In the underlying motion to compel, Croft
sought a copy of the 167-page claim file Liberty produced in
October 2020. The court recognized Croft was seeking “to compel
compliance with what [Liberty] said [it] would do in 2020.” The
court granted the motion, finding Liberty waived its objections to
the First RFP.5
The trial court had the difficult task of tracing discovery
disputes between the parties, which were interrupted by an
4 Croft does not assert that Liberty had an affirmative ongoing
duty to supplement its responses to the First RFP. Liberty provides
authority for the proposition that there is no such duty. (See Biles v.
Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1328 [“‘There is no
duty to update or amend the answers, either to correct errors or to
include new information discovered later’”].)
5 An exchange between the trial court and the parties, which the
parties did not provide to the trial court when it was deciding whether
to impose terminating sanctions, suggests Liberty had some reason to
believe that it only had to produce the original claim file, as of
October 2020, in unredacted form. At the October 2023 hearing,
Liberty’s counsel asked the trial court to clarify the limits of the
attorney-client privilege waiver as to the First RFP. The court asked
Croft whether he was seeking information about Kisiel’s
communications with Liberty’s new counsel, which would not have
been included in the claim file produced in October 2020. When the
court said, “That doesn’t have to do with the compliance with respect to
the UIM file,” Croft’s counsel replied, “No, it’s about the underlying
liability issues.” The court instructed only that “questions of the
handling of the underlying claim” had to be answered.
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appeal and presided over by different judicial officers, back
several years. There were many discovery orders concerning the
claim file, but there was no clear order requiring Liberty to
produce completely unredacted copies of privileged documents
added to the claim file after October 2020. (See Biles v. Exxon
Mobil Corp., supra, 124 Cal.App.4th at p. 1327 [absent unusual
circumstances, two facts are generally a prerequisite to
imposition of nonmonetary sanctions: (1) there must be a failure
to comply with a court order, and (2) the failure must be willful].)
While the trial court and Croft were understandably frustrated
with Liberty’s other discovery delays, the past abuses alone did
not warrant the drastic sanction of striking its answer. (City of
Los Angeles v. PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46,
63 [“discovery sanctions are not to be used ‘to provide a weapon
for punishment’”].)
It was therefore error to impose terminating sanctions.
(See Metis Development LLC v. Bohacek (2011) 200 Cal.App.4th
679, 693 [“abuse of discretion may be found when the court
proceeds upon a mistaken premise or a factual finding not
supported by substantial evidence”].) Because the award of
monetary sanctions was based on the imposition of terminating
sanctions, the monetary sanctions are also reversed. Nothing
herein is intended to prevent the trial court from imposing
sanctions in the future if Liberty fails to comply with its
discovery obligations.
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DISPOSITION
The order is reversed. The matter is remanded with
instructions to the trial court to vacate the order granting
terminating and monetary sanctions, striking Liberty’s answer,
and entering its default. The parties shall bear their own costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
ZUKIN, P. J.
COGLIATI, J. **
** Judge of the Santa Cruz County Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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