Filed 10/30/19 Lee v. Alameda Health System CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

TIMOTHY MAY LEE,

Plaintiff and Appellant,

v.

ALAMEDA HEALTH SYSTEM,

Defendant and Respondent.

A154592

(Alameda County

Super. Ct. No. RG15784234)

Timothy May Lee (Lee) sued Alameda Health System (AHS) for discriminating and retaliating against her based on her age, race, and disability. The trial court imposed terminating sanctions after Lee failed to comply with three court orders compelling her to respond to interrogatories and produce documents. We affirm.

I. FACTS
II.
Rather than summarizing the history of this litigation, we set forth only the facts relevant to the appeal. The discovery dispute leading to the order terminating this case occurred between April 2017 and April 2018; it concerned AHS’s second set of supplemental interrogatories and request for production of documents (hereafter, supplemental interrogatories and request for documents). During that period, the trial court issued three progressively-higher monetary sanctions based on Lee’s repeated failures to provide sufficient responses. After three monetary sanctions failed to secure Lee’s compliance with its orders, the trial court granted terminating sanctions. We discuss each order and accompanying sanction in turn.

A. First Order and Monetary Sanctions
B.
AHS served Lee with its supplemental interrogatories and request for documents on April 12, 2017. Many of the requests were for information to assess Lee’s damages. Lee did not respond. AHS filed its first motion to compel responses from Lee on June 2, 2017. Lee did not oppose this motion.

The court held a hearing on AHS’s motion to compel on June 27, 2017, subsequently issuing an order requiring Lee to serve AHS “with verified responses, without objections, to [AHS’s supplemental interrogatories and request for documents], along with all later-acquired or discovered responsive documents.” The court also sanctioned Lee and her counsel $225.

C. Second Order and Monetary Sanctions
D.
By the time of the pretrial conference on July 14, 2017, Lee had yet to comply with the court’s order that she respond to AHS’s supplemental interrogatories and request for documents. When an attorney standing in for Lee’s counsel informed the court that Lee’s counsel was unprepared to go to trial in 10 days, the court was forced to continue the trial a second time; the first available date was eight months later. The court warned that “[a]ny delay in the trial caused by non-compliance with any order contained herein, shall be the subject of sanctions pursuant to [Code of Civil Procedure section] 177.5.”

The week after the July 14, 2017 hearing, Lee produced copies of discovery responses from 2016 and asked AHS to confirm whether it had previously received those responses. AHS confirmed that it had. After two more weeks, AHS’s counsel emailed Lee’s counsel to inquire about the status of additional discovery. Despite the court’s June 27, 2017 order instructing Lee to provide “all later-acquired or discovered responsive documents,” Lee’s counsel replied that its prior discovery responses were sufficient to respond to AHS’s supplemental interrogatories and request for documents.

AHS then filed a motion requesting monetary and terminating sanctions on September 22, 2017. AHS requested sanctions because Lee had “misused the discovery process by failing to provide discovery responses and responsive documents” and had been unprepared for the July 2017 trial.

Lee produced unverified responses to AHS’s supplemental interrogatories a few days before the November 30, 2017 hearing on AHS’s second motion for sanctions. The trial court described these responses as “lacking any substantive information[ ] and stating only that [Lee] was unaware of any additional information or documents.” Despite Lee’s partial response, the court proceeded with the hearing on AHS’s motion for monetary and terminating sanctions. In its subsequently issued order, the court sanctioned Lee’s counsel $1,000 but concluded terminating sanctions were unwarranted.

E. Third Order and Monetary Sanctions
F.
Shortly after the November 30, 2017 hearing, the parties met and conferred regarding Lee’s still-outstanding response. AHS’s counsel requested that Lee include later-acquired information in her responses so that they would be complete as of the date of her supplemental responses. But Lee’s counsel insisted that Lee did not “have to provide any new information or documents applicable to the time period after the date of [Lee’s] original responses.”

Due to Lee’s strained interpretation of her discovery obligations, AHS filed a third motion for sanctions on the basis that Lee’s November responses were evasive and incomplete. AHS explained that Lee had objected to providing further responses because she claimed that she was not obligated “to provide information relevant to the time period after the date of the original responses.”

On February 20, 2018, the court heard arguments on AHS’s third motion for sanctions. In a short order issued that day, the court rejected Lee’s claim that she was “only required to provide information that existed at the time of her initial discovery response but was discovered later” and her contention that she was “not required to provide facts and documents that did not exist at the time of her initial discovery response.” The court informed Lee and her counsel that the “Code [of Civil Procedure] clearly require[d] [Lee] to produce any later acquired or discovered information responsive to the interrogatories or requests for production.” The court further ordered Lee to produce amended responses to AHS’s supplemental interrogatories along with responsive documents by March 5, 2018.

The court sanctioned Lee’s counsel $2,925 but again declined to impose terminating sanctions. However, it warned Lee that if she “fail[ed] to serve her amended verified responses by March 5[, 2018], the Court [would] be very likely to grant any future properly-noticed motion for terminating sanctions.”

G. Order Granting Terminating Sanctions
H.
Lee violated the court’s orders yet again by serving vague supplemental interrogatory responses and missing the deadline to produce responsive documents by more than a week. Even when Lee produced some responsive documents after the March 5 deadline, the production was incomplete, containing only partial tax records from 2012 to 2017 and incomplete medical records and bills from 2015.

Frustrated, AHS filed another motion requesting monetary and terminating sanctions on March 6, 2018. AHS argued that Lee’s interrogatory responses “did not provide any substantive updated information regarding Plaintiff’s damages or mitigation,” and that she had not produced any documents.

After hearing argument, the trial court issued a written order granting the motion for terminating sanctions due to Lee’s repeated abuse of the discovery process. The order relied heavily on Lee’s timely served but unsatisfactory interrogatory responses, describing them as “inadequate and evasive.” The order cited several examples of Lee’s one- or two-line supplemental interrogatory responses to support its termination order.

The order also found inadequate Lee’s untimely production of incomplete tax, medical, and billing records because the documents failed to clarify Lee’s damages and mitigation claims. It noted that the production did not include any pay stubs, wage statements, job applications, or rejection letters that would have helped explain and support Lee’s damages claims. The court observed that some of the documents “had clearly been in [Lee’s] possession, custody, or control for years.”

Based on Lee’s insufficient responses to AHS’s supplemental interrogatories and request for documents, the court concluded that “terminating sanctions [were] . . . appropriate here because [Lee] and her counsel have engaged in a history of discovery abuse and failing to follow court orders.” The court observed that Lee “and her counsel have been given numerous chances to provide adequate responses to the Supplemental Discovery over the past nine months, have been repeatedly ordered to do so by the Court, and have been sanctioned for failing to do so three separate times to no effect.” The trial court observed that AHS was prejudiced because Lee’s failure to produce discovery concerning her damages meant the extent of her damages were still unknown on the eve of the third trial setting. The court found that “[a]t this point, an evidentiary or monetary sanction [was] insufficient to prevent this prejudice, and less severe sanctions appear[ed] to have little effect on [Lee] or her counsel in any event.” The court therefore granted AHS’s motion for terminating sanctions.

III. DISCUSSION
IV.
Lee insists the trial court should not have imposed terminating sanctions because she did not commit discovery misconduct and because any actions that could be construed as misconduct were not willful. Lee also claims the imposition of terminating sanctions violates due process because they are improperly punitive and excessive. We disagree.

A. Standard of Review
B.
We review a court’s issuance of terminating sanctions for abuse of discretion. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1322 (Biles) [nonmonetary sanctions], citing Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388–389 [court has discretion to impose a range of sanctions, including terminating sanctions].) The propriety of terminating sanctions is determined by the totality of the circumstances, including the willfulness of the improper acts and the detriment to the propounding party. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) We resolve all evidentiary conflicts in favor of the trial court’s ruling and reverse only if the trial court’s order was arbitrary, capricious, or whimsical. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224.) “It is appellant’s burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court’s findings.” (Ibid.)

C. Governing Legal Principles
D.
California discovery law authorizes a range of sanctions for conduct amounting to “misuse of the discovery process.” (Code Civ. Proc., § 2023.030; Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) As relevant here, misuse of the discovery process includes “[f]ailing to respond or to submit to an authorized method of discovery”; “[m]aking an evasive response to discovery”; and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (f), (g).)

Sanctions for misusing the discovery process “start[] with monetary sanctions and end[] with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 ; Code Civ. Proc., § 2023.030, subd. (d)(3).) A trial court should select a sanction that is “ ‘ “tailor[ed] . . . to the harm caused by the withheld discovery.” ’ ” (Doppes, at p. 992.) “If a lesser sanction fails to curb misuse, a greater sanction is warranted . . . until the sanction is reached that will curb the abuse.” (Ibid.) Thus, “where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280 (Mileikowsky).)

For terminating sanctions to constitute an appropriate exercise of discretion, there are generally two prerequisites: “(1) absent unusual circumstances, there must be a failure to comply with a court order,[] and (2) the failure must be willful.” (Biles, supra, 124 Cal.App.4th at p. 1327.)

E. Analysis
F.
Lee claims the trial court abused its discretion in granting AHS’s motion for terminating sanctions. We disagree.

The court issued three orders with progressively higher monetary sanctions over the course of nearly nine months before terminating Lee’s case. Lee or her counsel violated every order. In its last order before terminating Lee’s case, the trial court warned that if Lee “fail[ed] to serve her amended verified responses by March 5[, 2018], [it would] be very likely to grant any future properly noticed motion for terminating sanctions.” Even after that warning, Lee provided timely but plainly deficient interrogatory responses and untimely produced incomplete records that were insufficient to clarify her damages. These repeated failures to comply with the court’s orders show that Lee’s failure to comply with the court’s prior orders was willful. “The court was not required to allow this pattern of abuse to continue ad infinitum.” (Mileikowsky, supra, 128 Cal.App.4th at p. 280.) Terminating sanctions were therefore appropriate. (Biles, supra, 124 Cal.App.4th at p. 1327.)

Lee insists the trial court should not have imposed terminating sanctions because she complied with the third order to respond to interrogatories and produce documents. We disagree. To highlight just one of many deficient responses, in her initial response to AHS’s interrogatory asking her to state the total amount of income, benefits, or earning capacity she expected to lose and how she reached those amounts, Lee responded as follows: “Yes. As a layperson, Plaintiff is unable to quantify the value of her future lost benefits or earning capacity. Defendant’s wrongful termination of Plaintiff and loss of medical benefits caused her a significant amount of out-of-pocket expenses that continues to mount. Plaintiff’s claim for damages will be presented by plaintiff’s retained litigation consultants at the appropriate time before trial.” After multiple court orders, Lee’s supplemental responses stated merely that she did “not have anything new to add.” And although trial was set for the month after Lee provided this supplemental response, the record contains no evidence that Lee ever retained a litigation consultant.

Lee further claims the response she “provided allowed the trial court and the parties to determine her economic damages and mitigation efforts since her previous supplemental written discovery responses.” Tellingly, however, Lee’s briefs do not suggest a monetary sum for her economic damages, even though she claims the discovery she provided sufficed to prove economic damages. Lee’s inability to identify a sum on appeal is consistent with Lee’s counsel’s admission to the trial court that “he did not have an estimate of [Lee’s] damages, and admitted that [Lee] did not preserve any additional documentation of mitigation.” As the trial court recognized, Lee’s inability to provide sufficient evidence of damages and mitigation at the 11th hour interfered with the orderly process of litigation, made it unlikely AHS could receive a fair trial (as it could still not determine Lee’s damages), and appropriately resulted in dismissal. (Karras v. Western Title Ins. Co. (1969) 270 Cal.App.2d 753, 757 [court has inherent power to dismiss for lack of prosecution].)

Lee also contends the trial court incorrectly interpreted Code of Civil Procedure sections 2030.070 and 2031.050 to require Ms. Lee “to produce any later acquired or discovered information responsive to the interrogatories” that did not exist at the time of her initial discovery responses. Lee instead claimed that she only needed to supplement her responses if the information existed at the time of the original responses and was somehow not included in the original responses.

We agree with the trial court that Code of Civil Procedure section 2030.070 required Lee to update her responses to include “later information ‘bearing on all answers previously made.’ ” (Weil et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group), ¶ 8:945, [discussing Code Civ. Proc., § 2030.070, subd. (a)].) Moreover, pursuant to Code of Civil Procedure section 2031.050, subdivision (a), a party may serve supplemental demands “to obtain documents or things acquired or discovered by the adverse party after earlier demands were served.” (Id. at ¶ 8:1434.5 [discussing Code Civ. Proc., § 2031.050, subd. (a)].) There is thus no merit to Lee’s position that she was required to supplement her responses only if the information existed at the time of the original responses but was not included in the original responses.

Lee alternatively insists that “even if this Court agrees with the trial court that [AHS’s] supplemental interrogatories, as worded, properly requested new and previously non-existing information, Ms. Lee’s challenge was based on an earnest interpretation of the law and is not properly considered a willful act of misconduct.” This argument ignores the court’s June 27, 2017 order that Lee was to serve AHS “with verified responses . . . to Defendant’s Supplemental Interrogatories, Set Two and Supplemental Request for Production, Set Two, along with all later-acquired or discovered responsive documents.” (Italics added.) The trial court again rejected Lee’s argument in its third order issuing monetary sanctions, writing that “[o]bviously, any later acquired or discovered information responsive to the interrogatories or requests for production of documents would be covered by the earlier questions and bear on the answers previously made.” Lee’s responses therefore violated the court’s earlier orders that she provide later acquired or discovered information. This constitutes willfulness.

Finally, Lee contends that “imposition of terminating sanctions violates due process and must be reversed, as they are punitive in nature and go far beyond any discovery misconduct to be remedied.” As terminating a case “eliminates a party’s fundamental right to a trial, thus implicating due process rights,” “the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) However, “[w]hen a plaintiff’s deliberate and egregious misconduct in the course of the litigation renders any sanction short of dismissal inadequate to protect the fairness of the trial, California courts necessarily have the power to preserve their integrity by dismissing the action. Without such power, the court would sacrifice its essential role of determining, in accordance with the fair application of relevant law, who should prevail in the case or controversy presented.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 762.)

Given Lee’s violation of the court’s three orders compelling discovery, the three accompanying monetary sanctions, and the express warning that terminating sanctions could be issued, the trial court afforded Lee ample process before terminating her case. Based on these repeated violations, the court reasonably concluded that a lesser sanction would not suffice to compel compliance and that terminating sanctions were necessary and appropriate. The court’s order therefore did not violate Lee’s due process rights.

In sum, the court did not abuse its discretion by terminating Lee’s case.

V. DISPOSITION
VI.
The judgment is affirmed. AHS shall recover its costs on appeal.

 

_________________________

BROWN, J.

WE CONCUR:

_________________________

STREETER, ACTING P. J.

_________________________

TUCHER, J.

Lee v. Alameda Health Systems (A154592)