Filed 5/22/20 Ransdell v. Hill CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

—-

COLIN RANSDELL et al.,

Plaintiffs and Respondents,

v.

WILLIAM HILL,

Defendant and Appellant.

C082883

(Super. Ct. No. 161331)

Defendant William Hill, in pro per, appeals from a judgment entered following a court trial of plaintiffs Colin Ransdell and Jessica Jones’s action for common counts and fraud arising from Hill’s alleged failure to build and deliver a custom houseboat. On appeal, Hill contends that the trial court abused its discretion when it granted plaintiffs’ request for evidence sanctions and prohibited him from introducing any evidence disputing the material facts set forth in the complaint or in support of certain specified affirmative defenses as a discovery sanction. More particularly, Hill contends that the trial court lacked authority to impose the sanctions because plaintiffs failed to bring a timely motion to compel pursuant to subdivision (c) of section 2030.300 of the Code of Civil Procedure. We shall conclude that Hill forfeited his claim by failing to raise it below, and in any event, the sanctions were properly imposed based on Hill’s failure to obey a court order to provide discovery (§§ 2023.010, subd. (g); 2030.030, subd. (c)), and Hill has failed to show that he was prejudiced by any possible error. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2014, plaintiffs filed a complaint against Hill alleging common counts for “money had and received by defendant for the use and benefit of plaintiff” and “money paid, laid out, and expended to or for defendant at defendant’s special instance and request” and fraud. Hill, doing business as Precision Craft Boatworks, answered the complaint with a general denial and asserted 20 separate affirmative defenses.

During the discovery phase of the litigation, plaintiffs served Hill with Judicial Council form interrogatories, including form interrogatory 15.1, which asked him to “[i]dentify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: [¶] (a) state all facts upon which you base the denial or special or affirmative defense; [¶] (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and [¶] (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.” On September 26, 2014, plaintiffs filed a motion to compel Hill to respond to the form interrogatories. The motion to compel was scheduled to be heard on October 22, 2014.

On October 9, 2014, Hill served plaintiffs with a response to plaintiffs’ form interrogatories. Hill failed to respond to all of the form interrogatories propounded by plaintiffs, including No. 15.1. On October 10, 2014, Hill’s trial counsel, Virginia L. Gingery, filed a declaration in opposition to plaintiffs’ motion to compel, stating that “Hill has served verified, substantive responses to Plaintiffs’ form interrogatories . . . , without objections, as of October 9, 2014.” Gingery did not mention that Hill’s response was incomplete.

On October 21, 2014, the day before plaintiffs’ motion to compel was set to be heard, Gingery advised the trial court that the bankruptcy court had granted Hill’s motion to reopen his bankruptcy case, which she represented operated as an automatic stay of all proceedings in the state court action pursuant to title 11 United States Code section 362(a)(1). On October 22, 2014, the trial court took the motion to compel off calendar and continued the matter to February 10, 2015. On December 3, 2014, the bankruptcy court “re-closed” Hill’s bankruptcy and in doing so noted that Gingery’s representation to the trial court in this action that the automatic stay was revived by the reopening of Hill’s bankruptcy constituted “a serious misunderstanding of the bankruptcy process.” According to the bankruptcy court, “the automatic stay was terminated when the case was closed, pursuant to [11 U.S.C.] § 362(c)(2), and it was not revived when the case was reopened.”

On December 19, 2014, the trial court notified the parties that the case would be reassigned to Judge Michael P. Candela effective January 1, 2015.

On January 5, 2015, Gingery filed a declaration regarding “Plaintiffs’ Notice of Revival of Motion to Compel and Request for Additional Monetary Sanctions,” averring, “The only issue yet unresolved related to Plaintiffs’ discovery motions is the issue of sanctions, as, prior to the initial hearing date, my client responded, without objection, to Plaintiffs’ discovery requests,” and “[m]y client has now fully and completely responded to Plaintiffs’ discovery requests.” As detailed above, this statement was not accurate because Hill had not responded to all of the form interrogatories propounded by plaintiffs, including No. 15.1. On March 24, 2015, the trial court denied plaintiffs’ motion to compel responses to interrogatories as to Hill “because late responses were provided, without objections.”

On August 19, 2015, plaintiffs propounded a supplemental interrogatory to Hill, asking him to “state all later acquired information bearing on all answers previously made by William Hill in response to interrogatories propounded by [plaintiffs].” (§ 2030.070, subd. (a).) On November 5, 2015, plaintiffs filed a motion for an order compelling Hill to respond to the supplemental interrogatory and for monetary sanctions. Hill did not oppose the motion, and the trial court granted it. In its December 18, 2015 order, the trial court directed Hill to serve a verified answer to the supplemental interrogatory on or before 20 days of service of the court’s order. On January 19, 2016, plaintiffs moved for issue sanctions, evidence sanctions, or terminating sanctions for Hill’s failure to comply with discovery orders, including the trial court’s December 18, 2015 order. In their memorandum of points and authorities in support of their motion, plaintiffs asserted that “[t]he Supplemental Interrogatory that was not answered required that Mr. Hill provide responses to Judicial Council [F]orm Interrogatory 15.1 . . . . This interrogatory was the subject of a motion to compel filed on September 26, 2014. That motion was opposed. Mr. Hill claimed that he answered the discovery, but actually he did not answer Judicial Council Form Interrogatory 15.1 . . . .” “At this point in the litigation Plaintiffs have not received any substantive responses to the discovery requests concerning Mr. Hill’s denials of the allegations in the Complaint or supporting his affirmative defenses. Trial is set for April 25, 2016.”

Hill opposed the motion, arguing, among other things, that the supplemental interrogatory failed to refer to form interrogatory No. 15.1, and that he “should not be held responsible for failing to respond to Supplemental Form Interrogatory 15.1,” which he asserted on information and belief, did not exist. Hill submitted his response to the supplemental interrogatory contemporaneously with his opposition. It read, in its entirety: “Responding Party states to his information and belief, there is no later acquired information on all answers previously made by William Hill in response to interrogatories propounded by [plaintiffs].”

Plaintiffs’ motion for discovery sanctions based on Hill’s failure to obey the trial court’s December 18, 2015 discovery order was heard on February 19, 2016. After reviewing the papers and hearing argument, the trial court proposed a resolution that was agreed to by plaintiffs and Hill in open court. The trial court directed plaintiffs’ counsel to prepare an order for Hill’s approval and the court’s signature. Hill approved the order as to form and substance, and the trial court signed it. Pursuant to that order, which was filed and served on March 25, 2016, Hill was to provide plaintiffs with a response to form interrogatory No. 15.1 within 15 days from service of the order.

On April 22, 2016, plaintiffs moved for issue sanctions, evidence sanctions, or terminating sanctions for Hill’s failure to obey the court’s March 25, 2016 order. Plaintiffs argued that Hill “did not answer the portion of the interrogatory asking for an identification of the material facts that were denied and the facts supporting the denials. [Hill] also claimed not to have knowledge of facts supporting some of his affirmative defenses, but failed to articulate the efforts that he had made to find out facts supporting his defenses.” Among other things, plaintiffs requested that the trial court impose evidence sanctions prohibiting Hill from introducing “any evidence disputing the material facts set forth in the Complaint, or any facts supporting the Third, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Thirteenth, and Seventeenth Affirmative Defenses.”

Hill opposed the motion, claiming that his responses “were as complete and in compliance with the call of the interrogatories as is possible,” and that issue, evidence, and terminating sanctions were not warranted and were “too extreme.” He also claimed that “[i]f it is found that my responses are not fully responsive, such failure was unintentional. I am not educated in law and have only a limited understanding of the complexities of discovery proceedings.” At no point did Hill argue that plaintiffs’ motion or the trial court’s authority to impose discovery sanctions was restricted by section 2030.300.

The trial court granted plaintiffs’ request for evidence sanctions and ordered that Hill “will not be permitted to introduce any evidence disputing the material facts set forth in the Complaint, or any facts supporting the Third, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Thirteenth, and Seventeenth Affirmative Defenses.”

The matter was tried to the court on June 6 and 7, 2016. The trial court entered judgment in favor of plaintiffs and against Hill individually and doing business as Precision Craft Boatworks. The trial court awarded plaintiffs $191,631 in damages, consisting of $107,695 in compensatory damages, $30,089 in prejudgment interest, and $53,847 in punitive damages. In a separate proceeding, the trial court granted plaintiffs’ request for attorney fees in the amount of $2,771.

DISCUSSION

Hill contends that the trial court abused its discretion by ordering him to further respond to plaintiffs’ form interrogatory No. 15.1 and in imposing evidence sanctions when he disobeyed the court’s order. Hill argues for the first time on appeal that pursuant to the 45-day time limit set forth in subdivision (c) of section 2030.300, the trial court “was without jurisdiction and/or authority to further rule on Form Interrogatory 15.1” after March 3, 2014. As we shall explain, Hill forfeited his argument by failing to raise it in the trial court, and even if it had been preserved for review, it lacks merit. The trial court had the authority to impose evidence sanctions based on Hill’s failure to obey its March 25, 2016 discovery order, and even if it lacked such authority, reversal is not warranted because Hill has failed to show that he was prejudiced by the imposition of the sanctions.

Section 2030.300, cited by Hill, provides in pertinent part that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if . . . [¶] . . . [a]n answer to a particular interrogatory is evasive or incomplete.” (§ 2030.300, subd. (a)(1).) That section further provides that “[u]nless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (§ 2030.300, subd. (c).)

Hill claims that because plaintiffs failed to bring a timely motion to compel further responses to form interrogatories pursuant to section 2030.300, subdivision (c) following Hill’s “initial failure to sufficiently respond to Form Interrogatory 15.1” on October 9, 2014, plaintiffs “waived their right to file motions to compel responses and/or to compel further responses,” and the trial court “had no ‘standing’ or authority to rule on [plaintiffs’] discovery motions to compel and for sanction[s] relevant to Form Interrogatory 15.1.”

As a preliminary matter, Hill failed to raise this argument below and thereby forfeited it on appeal. “It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3; see also Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.)

Assuming for argument’s sake that the argument had been preserved for review, it lacks merit. As we shall explain, the trial court’s authority to impose evidence sanctions was not limited to section 2030.300. Section 2023.030 provides in pertinent part: “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: [¶] . . . [¶] (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” Disobeying a court order to provide discovery constitutes misuse of the discovery process. (§ 2023.010, subd. (g).)

The evidence sanctions at issue here were imposed based on Hill’s failure to comply with the trial court’s March 25, 2016 discovery order directing him to, among other things, provide plaintiffs with a verified answer to form interrogatory No. 15.1 within 15 days of service of that order. As detailed above, at the hearing on the motion that resulted in the March 25, 2016 order, Hill agreed in open court to provide an answer to form interrogatory No. 15.1. Plaintiffs’ counsel prepared an order memorializing the agreement reached at the hearing, which Hill approved as to form and substance, the trial court issued the order, and Hill failed to obey it. Hill’s failure to obey the court’s March 25, 2016 order, to which he stipulated, authorized the imposition of evidence sanctions notwithstanding plaintiffs’ alleged failure to file a timely motion to compel further responses in accordance with section 2023.300, subdivision (c). (§§ 2023.030, subd. (c) [authorizing evidence sanctions for misuse of discovery process]; 2023.010, subd. (g) [disobeying a court order to provide discovery constitutes misuse of discovery process].)

Finally, even if we agreed with Hill that the trial court lacked the authority to impose evidence sanctions or otherwise erred in prohibiting Hill from introducing evidence disputing the material facts set forth in the complaint or any facts supporting certain affirmative defenses, we would be bound to affirm the judgment because Hill has failed to show that any alleged error resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13; Evid. Code, § 354.)

Under the California Constitution, article VI, section 13, reversal of a judgment is impermissible unless the error complained of resulted in a “miscarriage of justice.” Evidence Code section 354 similarly provides that a judgment shall not be set aside unless the erroneous exclusion of evidence resulted in a miscarriage of justice. “A miscarriage of justice occurs only when the reviewing court is convinced it is reasonably probable a result more favorable to the appellant would have been reached absent the error.” (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 24.) The burden is on the appealing party to establish that a miscarriage of justice occurred. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317 [“ ‘[T]rial court’s error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a “miscarriage of justice”–that is, that a different result would have been probable if the error had not occurred’ ”].)

Hill has failed to meet his burden of establishing that a different result would have been probable had the excluded evidence been admitted. Significantly, Hill does not identify what, if any, evidence he would have introduced had the sanctions not been imposed. In addition, he has not provided this court with a reporter’s transcript. Without a reporter’s transcript or its equivalent, we cannot discern what evidence was admitted or proffered at trial. On the record before us, it is impossible to determine whether a different result was probable.

DISPOSITION

The judgment is affirmed. Plaintiffs are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/

BLEASE, J.

We concur:

/s/

RAYE, P. J.

/s/

BUTZ, J.