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Court of Appeal, Second District, Division 7, California.



Decided: December 09, 1986

Jay S. Bloom, Los Angeles for plaintiff. Leach, Biesty & McGreevy and Clinton T. McCool, Los Angeles for defendant.

Defendant, Southern California Rapid Transit District, (RTD) appeals from a default judgment entered after its answer to the complaint was stricken for violating discovery orders.   We affirm.


Plaintiff, Phillip Morgan, was injured in an accident involving an RTD bus.   He sued the RTD for negligence.   The RTD denied liability.   It contended the accident resulted from the bus driver's sudden, unforeseeable loss of consciousness and nothing in the driver's medical history or physical examinations suggested he would blackout while operating a bus.

Morgan initiated discovery into the bus driver's health prior to the accident.   The history of these discovery efforts and the RTD's failure to cooperate is detailed below.

July 23, 1984:  Morgan served second set of interrogatories.

October 31, 1984:  Morgan moved to compel response to second set of interrogatories.

November 28, 1984:  Court ordered RTD to respond by December 28, 1984;  $300 sanction.

January 15, 1985:  Morgan moved for order striking answer to complaint because response to interrogatories had not been served.

February 7, 1985:  RTD served response to interrogatories;  motion off calendar.

May 30, 1985:  Morgan moved for response to certain interrogatories on ground February 7 response incomplete.

June 27, 1985:  Court ordered RTD to respond to interrogatory No. 4 (regarding Dr. Metcafe) by July 2, 1985;  $314 sanction.

July 22, 1985:  Morgan moved to strike answer on ground no response to interrogatory No. 4 had been served and no sanctions paid.

August 30, 1985:  Court granted motion striking RTD's answer to the complaint.

Eventually after twice ordering the RTD to answer the interrogatories and imposing monetary sanctions the trial court struck the RTD's answer to the complaint.   This led to a default judgment for Morgan.

On appeal, the RTD contends the June 27 discovery order was invalid and therefore all orders flowing from it are also invalid;  the trial court abused its discretion in striking the answer to the complaint;  and, the default judgment was in excess of the court's jurisdiction.   We reject these contentions for the reasons set forth below.



The RTD contends the order striking its answer to the complaint is invalid because it flows directly from an invalid order on June 27, 1985, compelling further answers to interrogatories.   The June 27 order was invalid because the motion to compel further answers was not made within the 45-day time limit prescribed by Code of Civil Procedure, section 2030, subdivision (a).   The court had no jurisdiction to act on an untimely motion to compel answers.   (See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 683, 195 Cal.Rptr. 295.)

 We do not believe the court's June 27 order is properly characterized as an order compelling further answers under section 2030, subdivision (a).   A preceding order, November 28, 1984, had directed the RTD to file answers to Morgan's interrogatories.   That order implicity directed the RTD to file complete answers.  “[I]nterrogatories shall be answered ․ fully ․ under oath․”  (Code Civ.Proc., § 2030, subd. (a).)  The subject motion which resulted in the June 27 order was an effort by Morgan and the court to obtain RTD's compliance with the original order to answer interrogatories by utilizing section 2034, subdivision (b).

This is not a case where the responding party voluntarily filed answers to interrogatories but the propounding party, dissatisfied, seeks further information.  (Cf. Vidal Sassoon, Inc., supra, 147 Cal.App.3d at p. 682, 195 Cal.Rptr. 295.)   Here, the RTD filed no answers to the interrogatories until the trial court ordered it to do so and levied a $300 sanction.   Thus, there is more at stake here than Morgan's interest in obtaining the proper objects of discovery.  (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303, 10 Cal.Rptr. 377.)   There is also the interest of the court in compelling “obedience to its judgments, orders and process.”  (Code Civ.Proc., § 128, subd. (a)(4);  see Fairfield v. Superior Court (1966) 246 Cal.App.2d 113, 120, 54 Cal.Rptr. 721.)

Having already ordered the RTD to answer interrogatories under section 2034, subdivision (a) the court was authorized to “make any orders in regard to the refusal which are just.”  (Code Civ.Proc., § 2034, subd. (b)(2).)   The court responded to the RTD's refusal to comply fully with its first order by ordering the RTD “to answer interrogatory No. 4 completely within 5 days without objection” and imposing an additional monetary sanction.  Section 2034 imposes no time limit within which a court must act to enforce its own discovery order.   We will not borrow the 45-day time limit within which a party must move for further answers.   A court should not be so restricted in enforcing its orders.   Furthermore, it is reasonable to presume that where the Legislature does not provide a time limit in a procedural matter such as this it intended no time restrictions on the procedure.  (Crippen v. Superior Court (1984) 159 Cal.App.3d 254, 260, 205 Cal.Rptr. 477.)


 The trial court has broad discretion in imposing discovery sanctions.   (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 9, 207 Cal.Rptr. 233.)   “[T]he term judicial discretion implies absence of arbitrary determination, capricious disposition, or whimsical thinking.   It imports the exercise of discriminating judgment within the bounds of reason.   To exercise the power of judicial discretion, all material facts must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796, 149 Cal.Rptr. 499.)

In reviewing this particular case we bear in mind dismissing the defendant's answer is the most drastic sanction available to the court—the procedural equivalent of capital punishment—and that it contradicts the strong public policy favoring disposition of cases on their merits.  (See Flood v. Simpson (1975) 45 Cal.App.3d 644, 652, 119 Cal.Rptr. 675.)   Nevertheless it is a sanction the Legislature has authorized for use where just.  (Code Civ.Proc., § 2034, subd. (b)(2).)

 In Deyo the court named a variety of factors which may be relevant to the discretionary imposition of discovery sanctions.   These include the amount of time the party has had to answer;  the difficulty in obtaining answers;  the materiality of the unanswered questions;  whether the party has acted in good faith and with reasonable diligence, whether the party was unable to comply with the previous order of the court;  and, whether a sanction short of default would be an appropriate remedy.  (84 Cal.App.3d at p. 797, 149 Cal.Rptr. 499.)

The question that brought about the sanction asked for the address of a doctor who had examined the bus driver during the course of his employment.   The question was asked in a set of interrogatories served on the RTD in July 1984.   No answers to these interrogatories were filed within the statutory time or within several extensions granted by Morgan.   Eventually Morgan moved to compel answers.   The motion was granted on November 28, 1984.   The RTD was ordered to answer within 30 days and a $300 sanction was imposed.   Again, the RTD failed to respond within the 30–day period or the extension of time Morgan granted.   On January 15, 1985, Morgan moved for sanctions against the RTD.   The RTD served its answers on February 7, 1985, and Morgan's motion was taken off calendar.   The RTD's answers identified “Dr. Metcafe” as the physician who had performed physical examinations on the bus driver in 1976, 1978 and 1980.   No first name or address was given for “Dr. Metcafe.”   Morgan deemed this response as not complying with the court's November 1984 order and moved for another order to provide answers and for sanctions.   On June 27, 1985, the court ordered the RTD to answer the interrogatory “completely within 5 days without objection” and assessed another $314 in sanctions.   Having received no response to the interrogatory by July 22, twenty days past the due date, Morgan moved for an order striking the RTD's answer to the complaint.   After one year, three motions and two orders, the RTD still had failed to answer the interrogatory by stating “Dr. Metcafe's” first name and address or stating such information was not in its possession.

 The good faith and diligence referred to in Deyo requires the responding party to provide information in its possession or in the possession of its agents.   It does not require the responding party to research information which is equally available to the propounding party.  (Pantzalas v. Superior Court (1969) 272 Cal.App.2d 499, 503, 77 Cal.Rptr. 354.)   Here, “Dr. Metcafe's” first name and the address last known to the RTD were in the RTD's possession and should have been provided.  (Deyo, supra, 84 Cal.App.3d at p. 782, 149 Cal.Rptr. 499.)

The RTD also had the duty to provide the correct spelling of the doctor's name.   The interrogatory answer spells the name “Metcafe” but subsequent documents filed by the RTD spell the name “Metcalf”.   The RTD admits it misspelled the name of another doctor in the answers to the interrogatories, thereby casting further doubt on the correct spelling of “Metcafe.”

The trial court could reasonably conclude from the RTD's failure to provide information in its possession and the inaccuracy of the information it supplied the RTD did not exercise good faith and diligence in responding to Morgan's interrogatory.

The information Morgan sought was material to his case.   The RTD claimed there was no apparent cause for the driver's blackout and nothing in his medical history suggested he might lose consciousness while driving a bus.   This would provide the RTD a defense against liability to Morgan.  (See Tannyhill v. Pacific Motor Transport Co. (1964) 227 Cal.App.2d 512, 520, 38 Cal.Rptr. 774.)   Obviously, from Morgan's standpoint, contacting a doctor who had given the driver physical examinations before the accident could lead to admissible evidence to counter the RTD's defense.

The trial court considered whether a sanction short of default would be appropriate.   It concluded, “There is no meaningful sanction other than striking the answer.”   The court noted it had already issued two orders to answer the interrogatory.   It had also imposed monetary sanctions.   The RTD had neither answered the interrogatory nor paid the sanctions.   The court found an order limiting evidence relating to the interrogatory would not be an effective sanction because the interrogatory only sought to discover a potential witness who might rebut the RTD's claims about the driver's medical condition.

The RTD contends it was justified in failing to answer the interrogatory even after being twice ordered to do so.   The RTD states it informally supplied Morgan's counsel all the information it had about Dr. Metcafe;  failure to comply with the court's orders was a mere technicality.   Alternatively, the RTD argues it did finally answer the subject interrogatory on August 1, 1985, advising Morgan it did not possess Metcafe's current address and setting out the efforts it made to locate the doctor.   The RTD concedes the answer to the interrogatory was mailed to the wrong address and that the case was set for trial in September 1985.   Nevertheless the RTD claims its cunctatious and misdirected answer at least shows it did not willfully refuse to answer the interrogatory.

 The trial court was not persuaded by these arguments and neither are we.   A party may disagree with a court order.   He may believe it wrong-headed or a waste of time or picayunish—but he disregards it at his peril.  “There is no question of the power of the [trial] court to apply the ultimate sanction of default against a litigant who persists in an outright refusal to comply with his discovery obligations.”  (Flood v. Simpson, supra, 45 Cal.App.3d at p. 652, 119 Cal.Rptr. 675.)   Because the RTD ended up providing no better information in August 1985 than it could have provided in August 1984—i.e., it could not determine the whereabouts of Dr. Metcafe from its records—the trial court was justified in concluding the RTD's failure to answer the interrogatory was willful.   A willful failure does not necessarily include a wrongful intent.   A failure may be deemed willful if the party understood its obligation, had the ability to comply and failed to comply.  (Deyo, supra, 84 Cal.App.3d at p. 787, 149 Cal.Rptr. 499.)   All of these factors are present in the case before us.

 In summary, we find no abuse of discretion in striking the RTD's answer to the complaint.   The RTD had a year in which to simply state under oath, “The bus driver was examined by Dr. Walter Metcafe (or Metcalf) whose last known address is _.”  The fact the RTD persistently failed to provide information in its file in response to the interrogatory demonstrates a lack of good faith and a willful refusal to comply with the court's orders to answer the interrogatory.   The information Morgan sought was material to his case because the driver's medical history and physical condition were put in issue by the RTD.   There were no less drastic sanctions available to the court.   Orders to answer and monetary sanctions had been tried twice without success.   An order limiting evidence would not be effective because Morgan sought Dr. Metcafe as a potential witness to rebut the RTD's defense.   Thus, precluding the RTD from calling Dr. Metcafe as a witness would not be a pertinent response to the RTD's violation of the discovery orders.   Unless the court was willing to allow a party to decide for itself whether an order was worthy of being obeyed it had no alternative to the sanction it imposed.


The RTD contends the default and default judgment are void because Morgan gave no notice of the damages sought as required by Code of Civil Procedure section 425.11.   Alternatively, the RTD argues Morgan's damages are limited to $15,000, the jurisdictional limit of the municipal court where the action was initially filed.

As we explained in Twine v. Compton Supermarket (1986) 179 Cal.App.3d 514, 517, 224 Cal.Rptr. 562 section 425.11 exists because section 425.10 prohibits the plaintiff in a personal injury action from stating the amount of damages.  Section 425.11 affords the defendant “one last clear chance” to respond to the allegations of the complaint and avoid a judgment for an unstated, but potentially substantial, sum.   In Twine, we set aside the default and reversed the default judgment because plaintiff did not properly serve defendant with a statement of damages pursuant to section 425.11.

Unlike the case presently before us, the default in Twine occurred because the defendant failed to answer the complaint.   Here, the RTD answered the complaint but its answer was stricken for violating discovery orders.   The “one last chance” rationale obviously does not apply where the defendant has already taken the opportunity to answer the complaint.   Furthermore, having filed its answer, the RTD was entitled to conduct discovery on plaintiff's claims including the nature and amount of damages being sought.  Section 425.11 specifically authorizes a request for this information and, in the event a response is not served, authorizes a motion to compel a responsive statement.   Thus, we stress, unlike the defendant who fails to appear, the defendant whose answer is stricken for a discovery violation either knew or has had the opportunity to find out the amount of damages being sought.

 We see no purpose in requiring a section 425.11 notice where the answer is stricken as a discovery sanction.   There is no benefit to the defendant to be informed, after his answer is stricken, how much money the plaintiff is seeking.   At that point the defendant is out of court and the entry of default follows as a matter of course.   It could be argued requiring a section 425.11 notice be served along with the motion to strike the answer might encourage some defendants to comply with the discovery rules.   But, it would also lock the plaintiff into a lower damage amount than he might ultimately be able to prove at the hearing on the default judgment.   And, as we noted above, if the defendant's decision whether to comply with a discovery order depends on the amount of the judgment he will suffer if he fails to comply he has the ability under section 425.11 to find out the amount the plaintiff seeks.

There is no merit to the RTD's claim Morgan is limited to the jurisdictional amount of the municipal court just because the action was originally filed there.   The case was removed to superior court which has no jurisdictional limit.


The judgment is affirmed.

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.