Filed 5/27/20 Cunnie v. Allied Building Products CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

DONNA CUNNIE,

Plaintiff and

Appellant,

v.

ALLIED BUILDING PRODUCTS CORPORATION,

Defendant and

Respondent.

A157303

(Contra Costa County

Super. Ct. No. C1601692)

Plaintiff and appellant Donna Cunnie (Cunnie) sued defendant and respondent Allied Building Products Corporation (Allied) for personal injuries resulting from a car accident. Cunnie contends the trial court erred in dismissing the action based on her failure to adequately respond to Allied’s discovery requests for information related to a potential pre-existing medical condition. We affirm.

BACKGROUND

We note only facts relevant to the appeal.

I. The Lawsuit and Discovery

On September 11, 2014, Cunnie was driving her car when it was rear ended by a truck driven by an Allied employee, causing her alleged injuries. Emergency responders were not called to the scene, and Cunnie was able to drive to her scheduled appointment with a pain management physician who had been treating her for injuries relating to a 2009 automobile accident. In 2016, Cunnie filed a lawsuit against Allied, seeking monetary damages for personal injuries sustained in the 2014 accident. Allied filed an answer, denying liability.

Allied served Cunnie with requests for production of documents seeking information related to the injuries Cunnie suffered as a result of the 2014 accident. Cunnie’s counsel responded by placing 907 pages of medical records in Dropbox, a file hosting service, and informed Allied’s counsel the documents were “all the medical records I have” for Cunnie. The records pertained to medical treatment from the date of the accident, September 11, 2014, through late 2016. No medical records were produced that predated the 2014 accident.

Allied also served Cunnie with interrogatories. In response to Form Interrogatory No. 6.2, calling for physical, mental, or emotional injuries claimed due to the 2014 accident, Cunnie replied as follows: “Head (TBI) (traumatic brain injury), Head (Vestibular [i]njury causing impaired vision), Thoracic Outlet Syndrome (right shoulder neck).” In response to Form Interrogatory No. 6.3, injuries due to the accident still in existence, Cunnie replied as follows: “Headaches; cognitive/executive level issues such as lack of focus, organization and thought processing (worse with activity); impaired vision to the point of needing glasses (worse at night)” and “[s]houlder pain, up to side and front of neck (right side) and, weakness” which was “constant” and “worse with activity.” She also asserted “Possible TOS [thoracic outlet syndrome] surgery” might be required in the future.

Allied also propounded interrogatories seeking information about Cunnie’s medical condition prior to the 2014 accident. In response to Form Interrogatory No. 11.1, regarding prior litigation and injuries in the ten years before the 2014 accident, Cunnie replied: “Plaintiff had a car accident in October 2009 (low back injury). Settled without litigation (uninsured motorist through Amica Insurance).” In response to Special Interrogatory No. 16, medical providers seen in the ten years prior to the 2014 accident, Cunnie identified solely by name her primary physician for more than 20 years and named one other physician along with his hospital affiliation.

Allied filed a series of motions to compel further responses to discovery, and sent a request asking Cunnie to supplement answers to document requests and form and special interrogatories. Cunnie did not supplement her responses concerning litigation prior to the 2014 accident or medical providers who had treated her prior to the 2014 accident. She did file amended responses to certain form interrogatories and thereby expressly waived recovery of medical costs. Instead, her claim was limited to pain and suffering and emotional distress damages due to the head injury suffered as a result of the 2014 accident.

II. Motions In Limine

The parties filed pre-trial motions in limine.

Allied requested the court preclude Cunnie from introducing any evidence at trial on the issue of causation due to her deficient discovery responses regarding her current medical condition. This motion was opposed by Cunnie on the basis that she had provided all the information and medical reports in her possession. Cunnie then filed a supplemental opposition stating she would not introduce any medical records in her case in chief. Instead, she intended to prove her damages by other competent evidence, including her own testimony and expert testimony regarding her injuries. In response, Allied argued that the deficient discovery responses were not cured by Cunnie not entering the medical records into evidence in her case in chief.

Meanwhile, Cunnie filed a motion in limine seeking “to exclude any reference to prior claim[s] or lawsuits.” She argued that, while she had previously filed claims and lawsuits, they were irrelevant to the instant action. This was the first reference in the course of the lawsuit to Cunnie having in fact filed prior personal injury claims or lawsuits. Further, in none of the pleadings related to her or Allied’s motions in limine did Cunnie claim to have provided Allied with the names of any medical providers who treated her prior to the 2014 accident other than the two identified in response to Special Interrogatory No. 16.

Allied informed the court that, based on Cunnie’s belated disclosure in her motion in limine of prior lawsuits or claims, Allied’s counsel conducted a search of superior court records. That search revealed complaints relating to a 1989 accident and the 2009 accident, in direct contradiction to Cunnie’s response to Form Interrogatory No. 11.1 that she had settled the 2009 accident without litigation. The court documents regarding the 2009 accident included a case management statement indicating that, following a rear-end collision, Cunnie had sustained injuries to her “back, pelvis, right hip, buttocks and sciatica,” and had been treated by several medical providers, only two of whom were identified anywhere in Cunnie’s responses to discovery in this action.

The hearing on the motions in limine took place on May 25, 2019 and the court heard from counsel for both parties. Cunnie’s counsel argued that Cunnie’s medical issues before the 2014 accident were not relevant because she was only seeking damages for a traumatic brain injury sustained in the 2014 accident and had produced all of her medical records relating to that injury in her possession. Allied’s counsel argued the court records of the 2009 accident litigation demonstrated that Cunnie’s responses were inaccurate and incomplete as to prior litigations and prior medical providers. Counsel further noted that, had Cunnie timely disclosed the prior litigation, counsel could have searched the superior court records much earlier and discovered both the prior 2009 accident litigation and prior medical providers. Because of Cunnie’s failure to identify the litigation and prior medical providers, Allied had been precluded from discovering information concerning her pre-existing medical condition, an issue central to the case and Allied’s defense.

The court framed the problem confronting it as follows: the case concerned a 2014 accident, Cunnie’s pre-existing medical conditions were clearly relevant and central to the case, and Cunnie did not produce any pre-2014 medical records on the basis that they were not in her possession. While acknowledging Cunnie had no obligation to produce medical records not in her possession, the court found Cunnie did have an obligation under the Code of Civil Procedure to identify medical providers so that Allied could subpoena medical records and she failed to do so. On the contrary, Cunnie affirmatively – and inaccurately – represented that she was not involved in litigation before the 2014 accident and that she had been treated before the 2014 accident by only two physicians. The court went on to find that, regardless of whether the incomplete and inaccurate discovery responses were a hide the ball strategy by counsel or the result of Cunnie’s lack of memory or lack of candor, there was no cognizable excuse for the discovery deficiencies.

Noting that case law cautioned against the use of motions in limine to dismiss actions but that dismissal was likely appropriate in this case, the court again asked counsel to confirm that there were numerous prior medical providers about whom Allied heard nothing in formal discovery and that Allied only identified these medical providers by locating court records of prior litigation. While confirming these facts, Cunnie’s counsel urged the court not to dismiss the action for the following reasons: Cunnie did not remember the doctors who treated her following the 2009 accident; Cunnie’s counsel was not aware of them; Cunnie had disclosed the two medical providers she did recall and, if those providers’ records had been subpoenaed, perhaps there would have been references to other medical providers not disclosed; and any discovery deficiencies could be dealt with by cross-examination.

Following entry of a minute order dismissing the action without prejudice, Cunnie’s timely appeal ensued. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619, 622, fn. 3 [dismissal of action without prejudice is an appealable order because dismissal was by the court without any agreement by the parties as to future litigation or waiver of the statute of limitations]; see Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1105-1106 [even though order of dismissal is without prejudice, the order, resolving the action and unaccompanied by stipulation to waive statute of limitations, is final for purposes of appealability].)

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION

IN DISMISSING THE ACTION

“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process,’ ” including a party’s failure to respond and evasive responses to written interrogatories. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 (Doppes); Code Civ. Proc. §§ 2023.010, subd. (f), 2023.030, subd. (d).) Subdivision (d) of section 2023.030 “authorizes a trial court to impose . . . terminating sanctions against ‘anyone engaging in conduct that is a misuse of the discovery process,’ ” by entering an “order dismissing the action.” (Doppes, supra, at pp. 991-992.)

In selecting an appropriate discovery sanction, “[t]he trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ‘ “attempt[ ] to tailor the sanction to the harm caused by the withheld discovery.” ’ [Citation.]” (Doppes, supra, 174 Cal.App.4th at p. 992.) “ ‘Discovery sanctions “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.)

As the parties correctly agree, “[t]he trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse.” (Doppes, supra, 174 Cal.App.4th at p. 992; see Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 [appellate court reviews for an abuse of discretion an order terminating an action for discovery misuse, including failing to respond or making an evasive response]; see also Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 50-51 (Osborne) [broadly speaking, an appellate court reviews any ruling as to the admissibility of evidence, even if in limine, for an abuse of discretion].) We “ ‘view the entire record in the light most favorable to the court’s ruling, and draw all reasonable inferences in support of it.’ ” (Osborne, supra, at p. 51.) As the appealing party, Cunnie has the burden “ ‘to affirmatively demonstrate error . . . . ’ ” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.)

Putting aside the parties’ various arguments concerning the reasoning behind the court’s ruling, the trial court’s ruling clearly shows dismissal was premised on Cunnie’s failure to disclose litigation concerning the 2009 accident and failure to identify medical providers who had treated her following the 2009 accident.

Cunnie contends dismissal was an abuse of discretion because any failure to disclose litigation was due to her mistaken but honest belief as a lay person that the 2009 accident did not generate any litigation, and her failure to identity medical providers was because she simply forgot about the providers. However, mere ignorance of the law or a lapse of memory does not excuse a party’s failure to accurately respond to written interrogatories. As the trial court recognized, the discovery statute requires a party to provide complete and accurate responses “as the information reasonably available to the responding party permits” (§ 2030.220, subd. (a)), and if a party does not have sufficient personal knowledge to fully respond, the party shall so state and shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party (id., subd. (c)). Here, the trial court was well within its discretion to reject as inadequate Cunnie’s explanations for her inaccurate and incomplete responses as to both prior medical providers and prior litigation (lawsuits revealed in her own motion in limine).

We are not persuaded by Cunnie’s argument that dismissal was not required because she had limited her claim to damages for a traumatic brain injury. As conceded in her briefs, Allied’s expert contested both the severity of Cunnie’s brain injury “and the causation of the injury.” (Italics added.) Without question, Allied was entitled to raise the defense that the traumatic brain injury was not caused at all or solely by the 2014 accident, but was a consequence of a pre-existing medical condition following the 2009 accident. By Cunnie’s inaccurate and incomplete discovery responses, however, Allied was denied the opportunity to timely gather information concerning Cunnie’s pre-existing medical condition central to its defense.

Nor are we persuaded by Cunnie’s argument that dismissal was not required because she was not questioned during her deposition about the 2009 accident or the medical providers who had treated her following that accident and, thus, the matter was “an issue for cross-examination – not terminating sanctions.” The lack of questions at deposition does not provide an excuse for critically incomplete written discovery responses. Nor would cross-examination of Cunnie at trial have remedied the prejudice to Allied caused by the discovery deficiencies. As we have noted, Allied was entitled to challenge causation of Cunnie’s traumatic brain injury by evidence that her current medical condition was a consequence of a pre-existing medical condition. By Cunnie’s failure to disclose the identities of her medical providers, Allied was precluded from securing medical records that were certainly relevant to and might have bolstered its expert’s opinion regarding causation.

Because the significant deficiencies in Cunnie’s discovery responses were only revealed after discovery closed and on the eve of trial, thereby directly impacting Allied’s defense, we conclude the trial court did not abuse its discretion in imposing dismissal as a sanction.

DISPOSITION

The May 25, 2019 order is affirmed. Respondent Allied Building Products Corporations is awarded costs on appeal.

 

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Jackson, J.

A157303/Cunnie v. Allied Building Products Corp.