Brill
Filed
2/1/13 Rodriguez v. Brill CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MARTA RODRIGUEZ,
Plaintiff and
Appellant,
v.
THOMAS BRILL,
Defendant and
Respondent.
F063770
(Super.
Ct. No. S-1500-CV-259482)
APPEAL from
a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
SD Smith
PLLC and Steven D. Smith for Plaintiff and Appellant.
Clifford
& Brown, Robert D. Harding and Nicholas J. Street for Defendant and
Respondent.
-ooOoo-
Plaintiff Marta Rodriguez appeals
from the judgment entered in favor of defendant Thomas Brill, asserting the
trial court erred when it dismissed her complaint as a sanction for her failure
to respond to discovery requests and to comply with a prior trial court order
compelling her to do so. We conclude the
trial court acted within its discretion and affirm the judgment.
Rodriguez also attempts to appeal
from the constructive denial of her
motion for relief from the judgment pursuant to the provisions of Code of Civil
Procedure section 473, subdivision (b).
the notice of appeal had been filed.
Since the matter was stayed pursuant to section 916, subdivision (a),
the trial court acted in excess of its jurisdiction and its order denying the
motion is void. We therefore remand the
matter to the trial court to permit it to reconsider the motion.
FACTUAL AND PROCEDURAL SUMMARY
The record in this case is far from
complete. For example, a copy of the
complaint is not included in the record.
We were able to glean from the record the following sequence of events,
which we believe are accurate.
Brill is an attorney in the
Bakersfield area. He and Rodriguez lived
together as husband and wife for a number of years. When they separated, Rodriguez filed this
action against Brill, asserting that Brill promised to support her for the rest
of her life and, in exchange, she gave up many opportunities to obtain the
education and training she would need to support herself.
Trial in the action commenced at
some point in the past. However, a
mistrial was declared after a witness called by Rodriguez volunteered
information that had been ruled inadmissible in a motion in limine. The trial was rescheduled, but the trial
court specifically prohibited additional discovery.
When the second trial commenced,
the trial court concluded that its order prohibiting additional discovery had
been erroneous. It then gave the parties
the option of proceeding to trial or continuing the trial and conducting
additional discovery. Rodriguez elected
to continue the trial. This decision
started in motion the following events, which are chronicled in the record
before us.
On December 17, 2010, Brill served
on Rodriguez a set of special interrogatories,
commonly referred to as contention interrogatories, asking Rodriguez to state
all facts that supported the contentions in her complaint, name all the
individuals who could testify about those facts, and identify the documents
that supported those contentions. At the
same time, Brill also served on Rodriguez a request for production of documents
seeking the documents that supported her contentions.
On January 19, 2011, Brill’s
counsel granted Rodriguez an extension to January 31, 2011, to respond to
these discovery requests, which was confirmed by a letter dated January 20,
2011. Another extension was granted to
February 23, 2011.
Rodriguez failed to respond to the
discovery requests and on March 7, 2011, Brill filed a motion to compel
responses to both requests (hereafter the motion to compel), with a hearing
scheduled for April 4, 2011.
Rodriquez did not oppose the motion
to compel, nor did she appear at the hearing.
The trial court granted the motion and ordered Rodriguez to serve
responses, without objection, within 10 days of service of the notice of the
order. The notice of order was served on
April 4, 2011.
Rodriguez did not respond to this
order and on April 18, 2011, Brill filed a motion seeking either evidentiary
sanctions or dismissal of the action (hereafter motion for dismissal) as a
sanction for Rodriguez’s failure to respond to the discovery requests and
failure to comply with the order of the trial court. A hearing was set for May 11, 2011.
Instead of filing an opposition to
the motion for dismissal, Rodriguez filed a document entitled “Notice of Motion and Motion in Opposition to
Defendant’s Motion for Dismissal and/or Evidentiary Sanctions,†seeking
relief under section 473, subdivision (b), which apparently was treated by all
parties as an opposition to Brill’s motion.
Brill filed a timely reply. The
day before the May 11 hearing, after normal office hours, Rodriguez served a
proposed response to the interrogatories (via e-mail), but failed to respond in
any manner to the request for production of documents. Counsel for both parties attended the
hearing. The matter was taken under
submission.
On May 16, 2011, the trial court
granted the motion for dismissal and
ordered the complaint stricken as a sanction against Rodriguez
discovery. Judgment was entered
accordingly.
On or about July 13, 2011,
Rodriguez filed a motion for relief from the judgment pursuant to section 473,
subdivision (b) (hereafter motion for relief), asserting that the failure to
respond to the discovery and the trial court’s order dismissing the action was
the result of the neglect of her attorney.
Plaintiff’s papers included a declaration of her counsel acknowledging
his negligence. Brill opposed the
motion. Rodriguez filed an untimely
reply and, shortly before the August 10, 2011, hearing, provided unverified
answers to the interrogatories, as well as an unverified response to the
request for production of documents in an attempt to comply with the trial
court’s April 4, 2011, order.
name="_ftnref2" title="">[2]
On August 10, 2011, the trial court
held a hearing on the motion for relief.
It accepted for consideration Rodriguez’s late filed reply but provided
Brill an opportunity to file a response to the reply, without further
hearing.
On October 13, 2011, Rodriguez
filed a notice of appeal from “dismissal as discovery sanction under CCP
2023.030, constructive denial of [the] 7/15/2011 motion to vacate.â€
On November 3, 2011, the trial
court denied Rodriguez’s motion for relief from the judgment.
DISCUSSION
I.
TERMINATING SANCTION
Rodriguez seeks relief from a
judgment entered against her in the action she filed against Brill. The judgment was entered after the trial
court struck the complaint as a sanction against Rodriguez for failing to
comply with a prior order compelling her to answer the interrogatories and
request for production of documents served on her by Brill.
Rodriguez’s actions, trial court
pleadings and briefs have caused much confusion, which began with Rodriguez’s
opposition to the April 2011, motion for dismissal. Instead of opposing the motion, or arguing
factors in mitigation, Rodriguez filed a document purportedly seeking relief
pursuant to section 473, subdivision (b) for excusable neglect by her attorney.
While it is clear Rodriguez was
seeking to avoid a terminating sanction, it is not possible to determine
exactly what relief Rodriguez was seeking pursuant to section 473. This section provides relief, in certain
circumstances, from a judgment, dismissal, order, or other proceeding taken
against her.
To the extent that Rodriguez was
seeking relief from whatever sanction the trial court would be imposing in the
motion pending before it for sanctions, the request was premature. To the extent Rodriguez was seeking mandatory
relief from the prior April 4, 2011, order compelling responses based
on attorney negligence, it was inappropriate.
The mandatory provisions of section 473, subdivision (b) are limited to
setting aside judgments, not other orders, and no judgment had been entered at
that point in time. To the extent
Rodriguez was seeking relief from the prior order awarding attorney fees to Brill,
it was irrelevant. In other words, it
was a nonsensical opposition because there was no judgment, dismissal, order or
other proceeding for which relief could be granted that was relevant to the
motion before the trial court.
What Rodriguez should have
attempted in her opposition was to minimize any monetary or evidentiary
sanctions and avoid a terminating sanction.
To accomplish this, before the May 11 hearing Rodriguez should have
filed responses to the discovery propounded by Brill in a manner consistent
with the prior court order.
Rodriguez did not take this
commonsense approach to her counsel’s inaction.
The prior order on Brill’s motion to compel required Rodriguez to
respond to all interrogatories, without objection, and to produce the documents
requested in the request for production of documents. Instead, Rodriguez served an unverified
response to the interrogatories on the night before the hearing that contained
numerous objections. Rodriguez did not
serve a response to the request for production of documents.
We suspect it was this conduct that
compelled the trial court to deviate from its tentative ruling on the motion
for dismissal. The trial court’s
tentative ruling, issued before it was aware of the discovery responses
prepared by Rodriguez, was to deny the request for a terminating sanction but
grant evidentiary sanctions that would preclude Rodriguez from producing any
evidence not previously disclosed in discovery.
After argument, including review of the responses produced by Rodriguez,
the trial court ordered the complaint stricken and the case dismissed with
prejudice. The trial court noted that
Rodriguez served her unverified interrogatory responses in an unauthorized
manner, after business hours, the evening before the hearing, which contained
objections, in violation of the prior order.
In addition, the trial court noted that many of the objections were
frivolous.
The trial court’s frustration is
evident in this portion of the minute order:
“The plaintiff disregarded requested and unrequested grants of
extensions of time for service of responses; ignored efforts to meet and confer
initiated by defense counsel when defense counsel was not required to do so;
ignored the motion to compel; ignored the court’s order compelling responses
without objection; and ignored the applicable law as to the service and content
of responses when finally deciding to serve something. [¶] It is almost five (5) months since
the service of the interrogatories.
Repeated formal and informal efforts have been made to obtain the
discovery, still to no avail. The
terminating sanction is warranted and granted.â€
(Some capitalization omitted.)
In her brief filed with this court,
Rodriguez apparently seeks to attack this order and the resulting judgment on
two grounds. First, she appears to
assert the trial court abused its discretion in dismissing the complaint and
entering judgment for Brill. Rodriguez
argues that a lesser sanction, such as that contained in the tentative ruling,
should have been imposed instead of a terminating sanction. Second, she asserts she should have been
granted relief pursuant to section 473, subdivision (b).
As we have already discussed, there
was no section 473 relief available when the trial court made this May 16,
2011, order, so this argument is rejected.
Accordingly, the only issue is whether the trial court erred in choosing
a terminating sanction for Rodriguez’s failure to respond to the discovery and
failure to obey the trial court’s order.
“We review discovery orders for an
abuse of discretion. [Citation.] Sanction orders are ‘subject to reversal only
for arbitrary, capricious or whimsical action.’
[Citations.]
Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th
1093, 1102 (Liberty Mutual).)
One of the principal purposes of
the Civil Discovery Act (§ 2016.010 et seq.) is to allow a party to
obtain information possessed by his or her adversary in order to further the
efficient and economical disposition of actions on their merits. (Caryl
Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303 (
construed to accomplish its purposes. (
Sanctions are listed in increasing
severity in section 2023.030 of the Civil Discovery Act and include monetary
sanctions, issue sanctions, evidentiary sanctions, a terminating sanction, or a
contempt of court. (Id., subds. (a)-(e).) “The sanctions the
court may impose are such as are suitable and necessary to enable the party
seeking discovery to obtain the objects of the discovery he seeks but the court
may not impose sanctions which are designed not to accomplish the objects of
the discovery but to impose punishment.
[Citations.]†(
304.) Rodriguez asserts the trial
court abused its discretion, while Brill argues the opposite. Each party cites cases that support his or
her position. For example, Rodriguez cites
[failure to respond to interrogatories and appear at deposition, although the
defendant offered to stipulate to liability for auto accident], as well as
[refusal to disclose chemical composition of product that allegedly injured the
plaintiff]. In each case, the appellate
court reversed the judgment entered after the trial court struck the offending
party’s pleading, concluding the trial court abused its discretion when it
failed to impose a lesser sanction, such as an evidentiary sanction.
Brill cites Liberty Mutual, supra, 163 Cal.App.4th 1093 (failure to provide
factual basis for allegations of breach of contract and failure to comply with
court order to do so) and Laguna Auto
Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, disapproved on
other grounds in Garcia v. McCutchen (1997)
16 Cal.4th 469, 478, footnote 4, (failure to provide factual basis for breach
of contract claims, failure to produce documents, failure to respond to
requests for admission, and failure to comply with court order to do so). In these cases, the appellate court upheld
the imposition of a terminating sanction for discovery abuses similar to this
case.
These cases establish that a trial
court has broad discretion in deciding what remedy is appropriate when a party
is not complying with their discovery obligations. We find a quote from Liberty Mutual to be particularly relevant. In resolving this issue, the question we must
answer “‘“is
not whether the trial court should have imposed a lesser sanction; rather, the
question is whether the trial court abused its discretion by imposing the
sanction it chose.â€â€™ [Citations.]†(Liberty
Mutual, supra, 163 Cal.App.4th at pp. 1105-1106.)
We conclude the trial court did not act in an arbitrary or
capricious manner in imposing the sanctions in this case. Rodriguez repeatedly ignored her obligations
to respond to discovery after she requested a continuance of the trial to
permit additional discovery. She ignored
all attempts by Brill’s attorney to resolve the dispute. She ignored the motion to compel and the
trial court’s order thereon. When she
finally attempted to comply, she ignored the trial court’s order prohibiting
any objection to the interrogatories and failed to provide any response to the
request for production of documents.
Simply put, Rodriguez did nothing for almost five months to respond to
the discovery. Under these circumstances
we conclude the trial court did not abuse its discretion.
II.
MOTION FOR RELIEF
After judgment was entered in favor
of Brill on June 9, 2011, Rodriguez moved for relief from the judgment pursuant
to section 473, subdivision (b), arguing that the judgment must be set aside
based on plaintiff counsel’s declaration of negligence. As stated above, the hearing on the motion
was held before the notice of appeal was filed, but the trial court did not
issue an order denying the motion until after the notice of appeal was
filed. The parties have fully briefed
the issue, but we conclude that since the trial court lost subject matter
jurisdiction when the notice of appeal was filed, its order denying the motion
is void.
Section 916, subdivision (a)
provides that the filing of a notice of appeal “stays proceedings in the trial
court upon the judgment or order appealed from or upon the matters embraced therein.†“The purpose of the automatic stay provision of section 916,
subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving
the status quo until the appeal is decided.
The [automatic stay] prevents the trial court from rendering an appeal
futile by altering the appealed judgment or order by conducting other
proceedings that may affect it.’
[Citation.]†(
35 Cal.4th 180, 189.) An order to vacate
the judgment is an order upon the judgment
that is encompassed within section 916, subdivision (a). (Takahashi
v. Fish and Game Com. (1947) 30 Cal.2d 719, 725-726; Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 438.) The trial court has no power to act, even
with the consent of the parties. (
subject matter jurisdiction and its order is void. (Varian
Medical Systems, supra, at p. 196.)
DISPOSITION
The judgment is affirmed. The order denying Rodriguez’s motion for
relief from the judgment pursuant to section 473, subdivision (b) is void, and
the matter is remanded to the trial court for consideration of that motion.
Franson, J.
WE CONCUR:
Gomes, Acting P.J.
Kane, J.
name="_ftn1" title="">[1] All
statutory references are to the Code of Civil Procedure unless otherwise
stated.
name="_ftn2" title="">[2] These
documents are dated August 8, 2011 (special interrogatories) and August 9, 2011
(request for production of documents).
Neither document was verified, nor was either document accompanied by a
proof of service. Therefore, it is
unclear whether the documents were served or filed with the court, or both, or
neither.
It also appears that
Rodriguez may have served verifications to the responses at the hearing.
