COUNTY OF ORANGE v. LUCE LUCE (1985)

OPINION

In this original proceeding we are asked to determine the appropriate sanction to be imposed pursuant to Code of Civil Procedure section 2034, subdivision (d), upon a defendant who has failed to engage in meaningful pretrial discovery, including disobeying discovery orders, when such conduct results in prejudice to plaintiff even though plaintiff accomplished its discovery objectives by other means.   The trial court struck defendant County of Orange's answer as a consequence of its conduct during the discovery phase of litigation.   The county petitions this court, arguing the sanction imposed is too severe.   We agree and issue the writ, imposing other less drastic but nevertheless significant evidentiary sanctions.

Discovery problems in this personal injury action were exacerbated by the fact the alleged injury occurred on October 26, 1970, when the plaintiff was 17 months old.   Suit was filed 10 years later on April 23, 1980.   The claimed injury occurred when plaintiff, his mother and younger brother visited a Well-Baby Clinic operated by the County of Orange on the premises of the Orangethorpe United Methodist Church.   Plaintiff and his younger brother were patients at the clinic.   On the day in question, either one or two collapsible tables, stored on their sides against a wall, fell over onto plaintiff, allegedly causing irreversible brain damage.

Since plaintiff was a patient at the clinic, the county maintained a Child Health Record, Division of Maternal and Child Health, Orange County Health Department (referred to herein as the Well-Baby record).   The Well-Baby record covered a period from July 14, 1969 (when plaintiff was three months old) to April 15, 1971 (when plaintiff's family moved from the area).   The Well-Baby record contained an account of the October 26, 1970 accident,¹ which plaintiff claims resulted in his brain damage and retardation, and a brief account of his development prior to the accident.   It was the county's failure to produce this record promptly, along with the names and addresses of parents of other patients at the clinic, which gave rise to the discovery sanction imposed in this case.

Plaintiff first requested reports concerning the accident and the injuries complained of in September 1980.   At that time, plaintiff served interrogatories on the county requesting information concerning possible witnesses.   Plaintiff also requested any report “concerning this accident or the injuries complained of.”   Plaintiff had to file a motion to compel answers to its first set of interrogatories before the county answered on January 9, 1981.   The county's answers revealed the names of three potential witnesses to the accident, the doctor and two nurses present at the clinic, as well as the existence of an accident report prepared in 1979.   However, the county also had in its possession the Well-Baby records for plaintiff and for 14 other patients who were seen at the clinic that day and whose parents or guardians were potential witnesses, yet the county gave plaintiff no information concerning these records.

On March 15, 1983, co-defendant, Orangethorpe Methodist Church (Orangethorpe), served the county with a request to produce documents which specifically requested clinic records and/or medical records in the county's possession concerning treatment of plaintiff both before and after the October 26, 1970 accident.   Orangethorpe also sought records for all persons who attended the Well-Baby Clinic on the day in question.   The record before us does not indicate whether the county responded to this request or whether Orangethorpe pursued it.

Plaintiff's next attempt at discovery occurred on March 8, 1984, when plaintiff served his second set of interrogatories.   Plaintiff asked whether the county had learned of any witnesses since the date of the first set of interrogatories.   The county answered, “No.”   Plaintiff also asked, “Did any person make any report for, or to, you pertaining to plaintiff's accident on October 26, 1970?”   The county answered, “No.”

Apparently, a third set of interrogatories was also filed by plaintiff, but these are not included in the record.   However, the record does show plaintiff was forced to seek an order compelling the county's answers to the second and third set of interrogatories.

On March 30, 1984, plaintiff propounded a request for identification and production of documents, including a request for all Well-Baby Clinic records containing names and addresses of all parents attending the Well-Baby Clinic on the date of the accident, as well as “A true and complete copy of Child Health Record pertaining to Scott Brian Luce.”   In a letter reply, the attorney for the county stated, “While it is highly unlikely my client” has any such records since “my client disposes of records after three years[,] ․ we are still searching.”   This was a complete misstatement since, as will be seen, the county official in charge admitted he failed to search after the first set of interrogatories was answered in 1980.

On June 7, 1984, plaintiff filed a motion for an order compelling the county to identify and produce the requested documents.   This motion was granted by the court on June 14, 1984.   Shortly thereafter, the county filed a response to plaintiff's request stating, “We have no such documents.”

Not willing to accept the county's answers despite their being under oath, plaintiff's counsel sent someone directly to the County Health Care Agency with a medical release authorization from plaintiff's father asking to see plaintiff's medical records.   After a search, the agency was able to locate the requested Well-Baby records for plaintiff, and, on July 5, 1984, plaintiff's counsel received a copy of plaintiff's Well-Baby Record by certified mail from the County Health Care Agency.   The county did not, however, give plaintiff the requested copies of records of other clinic patients who may have been at the clinic on the day of plaintiff's accident.

On August 20, 1984, plaintiff filed a motion to strike the county's answer and to enter default or, in the alternative, for suitable orders and sanctions on the ground that “said defendant willfully suppressed material evidence and willfully supplied false answers to interrogatories and requests to produce.”   Evidence offered in support of and in opposition to the motion showed coordination and investigation of lawsuits against the county was handled by “risk management,” a county agency.   John Oskins, a “risk management” administrator, became aware of this case when he started work with the county in February 1980.   In the latter part of 1980, at the request of the county's attorney, Oskins attempted to discover “accident reports or reports written, prepared by anybody in connection with this case.”   Felix Schwartz, one of the Health Care Agency administrators and, at one time, the custodian of records, told Oskins if any reports existed they would have been destroyed after five to seven years.   Schwartz also stated he remembered the staff had given a medical record to an investigator named Mr. Chambers in 1979, who stated he represented plaintiff's family.

Oskins stated that, after his first request for records from Schwartz, he believed there were no records because they had been destroyed and, if there were any, plaintiff's counsel already had them.   Oskins never asked anyone at the Health Care Agency whether, in fact, any records existed pertaining to plaintiff.

After a hearing on the motion, the trial court issued its order, finding:  “defendant's conduct during the course of discovery as evidenced by the record in this action was willful, without substantial justification and justifies an award of reasonable expenses and attorneys fees.”   The court also stated, “Further, although the Court has determined not to strike the answer of defendant or to preclude defendant from presenting evidence on certain issues, the Court finds this record cries out for the Court to ‘impose other penalties of a lesser nature the Court may deem just.’  [¶]The conduct of defendant and counsel for defendant was frivolous and in bad faith;  likewise, the opposition to the motion was without merit.”   The trial court awarded sanctions in plaintiff's favor in the amount of $10,000 as well as reasonable expenses and attorneys fees in the sum of $2,500.

Trial in this matter was set for October 8, 1984.   Shortly before trial, plaintiff issued a subpoena duces tecum to the Custodian of Records for the County Health Department seeking “all of the medical records pertaining to children who attended the Well-Baby Clinic held at the Orangethorpe United Methodist Church in 1970.”   The county filed a motion to quash the subpoena, claiming it was “violative of the rights to privacy of those individuals whose medical records are being sought” and of California Rules of Court, rule 333, since plaintiff sought discovery within 30 days of trial.   The trial court ordered inspection of the medical records in camera and, as a result, on October 11, 1984, plaintiff obtained approximately 50 sets of Well-Baby Clinic records containing names and addresses of parents who had attended the clinic in 1970.   Plaintiff states 14 of the files pertain to babies who were seen at the clinic on the day of plaintiff's accident.   These records were obtained on or near the day set for trial of this matter, yet they were first requested in 1980, and, during the course of discovery, the county had steadfastly denied their existence.

The county filed exceptions to the trial court order contending, among other things, that under the provisions of Government Code section 818² the trial court had no power to impose punitive sanctions upon it.   The county also took exception to many of the factual findings of the court.   After a hearing on the county's exceptions, on October 23, 1984, the trial court issued a minute order wherein the court stated it had “reconsidered its ruling in light of the entire record in this action, including the argument entertained on the record and the supplemental declarations submitted by the parties․”  The court made findings as follows:  “The Court finds that the conduct of the defendant, County of Orange, which is amply evidenced by the record before the Court, has deprived plaintiffs of meaningful discovery and has been prejudicial to plaintiffs' preparation and presentation of their case.   The belated attempts by defendant (which the Court finds less than voluntary) to comply with their discovery obligations and, indeed, prior orders of this Court should not be allowed to prejudice plaintiffs' case.”   The trial court modified its prior order of October 1, 1984 by vacating the imposition of sanctions in the amount of $10,000 and granting plaintiff's request to strike the county's answer.   The court reaffirmed the remainder of its October 1 order, including the award of reasonable expenses and attorneys' fees in the sum of $2,500.

When this petition for writ was originally filed with this court we denied it based on the well established principle that the county's remedy by way of appeal from the soon to be entered judgment against it was adequate.   (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439;  Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 488, 202 Cal.Rptr. 227.)   No compelled exposure of claimed privileged material, the main recognized exception to the above rule of restraint, is involved in this case.  (See Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5, 123 Cal.Rptr. 283, 538 P.2d 739;  Roberts v. Superior Court (1973) 9 Cal.3d 330, 335–336, 107 Cal.Rptr. 309, 508 P.2d 309.)   Nevertheless, the Supreme Court issued a stay of the trial in this matter, granted the county's petition for hearing, and retransferred the case to this court with directions to issue an alternative writ.   We have complied with the Supreme Court's directions and now address the merits of the county's petition challenging the propriety of the sanction imposed by the trial court.

 Code of Civil Procedure section 2034 covers sanctions which may be imposed upon a party who fails to fulfill its discovery obligations.   Under that section, the ultimate sanction of dismissal, or the striking of a pleading which amounts to a dismissal, can only be imposed where the party refuses or fails to comply with a discovery order or willfully refuses or fails to comply with certain discovery requests.  (See Code Civ.Proc. § 2034, subds. (b)(2)(C), and (d).)   In the case before us, plaintiff propounded interrogatories and a request for identification and production of documents, all of which first went unanswered.   Thereafter, as provided for in section 2034, subdivision (a), plaintiff filed motions to compel compliance.   In each instance, the county complied with the order and filed a response, albeit its responses were not truthful.   However, due to the persistence and ingenuity of plaintiff's counsel, plaintiff ultimately obtained all the records he sought.   Under these unique circumstances, we find the trial court's order striking the county's answer to be an abuse of discretion.

“The fundamental rule by which the appropriateness of discovery sanctions is judged is well stated in Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, at pages 303–304 [10 Cal.Rptr. 377], as follows:  ‘The trial court has a wide discretion in granting discovery and by the provisions of section 2034 of the Code of Civil Procedure it is granted broad discretionary powers to enforce its orders but its powers are not unlimited․  [¶]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 discovery but to impose punishment.   [Citations.]’ ”  (Motown Record Corp. v. Superior Court, supra, 155 Cal.App.3d at p. 489, 202 Cal.Rptr. 227.)

 Where a party refuses discovery altogether, the sanction of dismissal is condoned on the theory the refusal to reveal material evidence is, in effect, an admission that the claim or defense is without merit.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793, 149 Cal.Rptr. 499;  Kahn v. Kahn (1977) 68 Cal.App.3d 372, 382, 137 Cal.Rptr. 332.)   In this case, since the objects of discovery had been accomplished, the sanction imposed went beyond that which was necessary to effect the purpose of the discovery statutes.

In Deyo v. Kilbourne, supra, 84 Cal.App.3d 771, 149 Cal.Rptr. 499 defendant, appearing in pro. per., failed to answer interrogatories.   Plaintiff filed a motion to strike defendant's answer.  (Code Civ.Proc., § 2034, subd. (d).)  The trial court refused to strike defendant's pleading, but directed defendant to answer the interrogatories by a date certain and ruled his answer would be stricken if no responses were filed.   Defendant filed inadequate responses, and plaintiff filed a motion for further responses or to strike.   The trial court struck defendant's answer.   The appellate court reversed in an opinion which includes an exhaustive analysis of the provisions of section 2034 and the cases decided under it.   The court stated, “․ the court denied respondent's [plaintiff's] request for sanctions but directed appellant to file answers by December 15, 1976.   Appellant complied with that order and, therefore, no sanctions under section 2034, subdivision (b), of the Code of Civil Procedure were permissible.   Likewise, since answers were on file, no sanctions under section 2034, subdivision (d), of the Code of Civil Procedure could be imposed.  [Citation.]  [¶] Respondent made a timely motion to compel.   Therefore, the court had jurisdiction to direct appellant to file further answers to the interrogatories.   However, the court had no jurisdiction to strike appellant's answer and the order striking appellant's answer and entering his default must be reversed.  [¶] If the trial court found that the failure to supply proper answers was without substantial justification, an award of reasonable expenses would have been proper pursuant to Code of Civil Procedure section 2034, subdivision (a).   However, no such finding was made and the award of attorneys fees must also be annulled.”   (Id., at pp. 797–798, 149 Cal.Rptr. 499.)

In Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 210 Cal.Rptr. 464, plaintiff sued her former attorney for failure to file an action on plaintiff's behalf before the expiration of the statute of limitations period.   Defendant claimed because plaintiff failed to pay filing fees and court costs, despite a written reminder, he was not obligated to file suit on plaintiff's behalf.

The written reminder supposedly consisted of a form letter which advised:  (1) the date upon which the statute of limitations was to run, and 2) the consequences of failure to file suit before that time.   It also contained a request that plaintiff “come into the office at your earliest convenience and bring $75.00 for your filing fees and court costs.”  (Id., at p. 956, 210 Cal.Rptr. 464.)   At the time the letter was allegedly sent, the filing fee was only $51.

Surprising the letter had been prepared after the fact, plaintiff attempted to obtain pertinent information by interrogatories which defendant answered only after an order compelling answers.   Thereafter, plaintiff filed a request for production of documents.   When defendant again failed to supply the requested items, plaintiff brought a successful motion to compel.   Defendant did not comply with the trial court's order, and thereafter plaintiff filed a motion to strike defendant's answer.   Defendant neither opposed the motion nor did he appear at the hearing on it, and the trial court granted the motion.

The appellate court reversed, stating:  “From the foregoing recitation, we think it was fairly to be inferred by the trial court that appellant's obstinate failure to cooperate in the discovery process was both calculated and indicative of the fact his form letter defense was without merit, such that he clearly was subject to one or more of the consequences contemplated by Code of Civil Procedure section 2034, subdivision (b)․   The question remains, however, whether, in spite of appellant's recalcitrance, the ultimate sanction of entirely precluding him from any further participation in the case was appropriate.   As we have indicated, we think that question must be answered in the negative, based on principles which this court approved in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 [149 Cal.Rptr. 499]․”  (Id. at p. 958, 210 Cal.Rptr. 464.)   The court reiterated the “fundamental precept” of Deyo, as follows:  “ ‘The penalty 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 [so that a] sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.’  [Citation.]”  (Ibid.)

In Karz v. Karl (1982) 137 Cal.App.3d 637, at page 648, 187 Cal.Rptr. 183, the court stated, “But it has long been recognized that a wilful failure to obey an order requiring further answers to interrogatories, by filing evasive and incomplete further answers, can justify the sanction of dismissal.”  (See Williams v. Travelers Ins. Co. (1975) 49 Cal.App.3d 805, 810, 123 Cal.Rptr. 83;  Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 777–784, 66 Cal.Rptr. 776.)   However, in the above cases where dismissal was affirmed, the party seeking discovery was left with inadequate or no responses to its discovery request.   In the case before us, even though the trial court found the county's conduct to be willful,³ plaintiff actually attained the records he sought by other means.   Hence, the sanction of dismissal went beyond that which was necessary to protect plaintiff.   It was a sanction “designed not to accomplish the objects of the discovery but to impose punishment.”  (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304, 10 Cal.Rptr. 377.)   Thus, the trial court's order constituted an abuse of discretion.  (Motown Record Corp. v. Superior Court, supra, 155 Cal.App.3d 482, 490, 202 Cal.Rptr. 227.)

Yet, there is little doubt the county's conduct deserves sanction or that it has prejudiced plaintiff's case.   We note even plaintiff's counsel's resourcefulness could not undo the harm occasioned by the county's misconduct.   Since plaintiff's ability to present his case has been severely compromised, we must fashion evidentiary sanctions to prevent the county from benefiting from its own misconduct.

The county's failure to engage in discovery affected plaintiff's case in two areas.   First, the county failed to provide the names and addresses of potential witnesses, the parents of minor patients seen at the Well-Baby clinic on the date of the accident.   Almost four years elapsed from the time this information was first sought until it was finally produced.   It is reasonable to assume that one or more of those persons would have been able to identify, locate or describe the tables which fell on plaintiff and the manner in which they were placed.   Obviously, this testimony would be significant in determining the negligence of the county.

Plaintiff's attorney argues none of the potential witnesses now reside at the addresses given.   Plaintiff's mother has since died, and the county in its answers to interrogatories has stated the attending doctor and two nurses did not witness the event.   Thus, plaintiff is precluded from establishing negligence on the part of the county since he is unable to produce any witnesses to the location, size, or manner of stacking of the tables, or how the accident in question occurred.

The county argues we do not know whether prompt response to plaintiff's inquiries would have produced current addresses for the potential witnesses or, if the witnesses were found, what their testimony might be.   They also point out the addresses were already ten years old when first sought by plaintiff in 1980.

 We find this argument disingenuous at best.   To allow a party who willfully fails to disclose information to argue successfully that its opposition cannot show an early disclosure would have produced a different result makes a mockery of discovery and its purpose.   The aggrieved party, from whom the information has been withheld, would rarely be able to prove what might have happened four years earlier.   That is the very essence of plaintiff's prejudice here;  he cannot now locate any potential witnesses, nor can he show by any reasonable method that he would have been able to locate them, had the county not persevered in its obfuscation.   We will not allow a party who refuses discovery and then, when ordered, falsely answers discovery requests to benefit from its obstruent behavior.   Had the county provided the information sought, plaintiff might well have been able to locate a witness to the events in question, but the county prevented this possibility by its conduct.   Thus, the county shall be precluded from denying, by either argument or evidence, that the accident in question was proximately caused by its negligence, and the trial court shall instruct the jury that the county's negligence was a proximate cause of the accident in question.

Secondly, plaintiff claims the county intends to argue at trial that his current medical condition is due, in whole or in part, to a preexisting birth defect known as microcephaly or a defect in skull size.   The basis for the county's claim is contained in the Well-Baby clinic records it refused to produce.   The record contains measurements of plaintiff's head circumference at three, four, five and nine months of age.   The county will argue, based on those measurements, that plaintiff was microcephallic before the accident and that his microcephaly caused his present physical and mental condition.

Plaintiff maintains the head circumference measurements do not establish preexisting microcephaly, and further maintains the county should be precluded from claiming any such preexisting condition since it “hid” this information from plaintiff.   Plaintiff argues the county intended to “surprise” the medical experts, called to testify on plaintiff's behalf, by using the information contained in the Well-Baby record of which plaintiff was unaware.⁴  The county, of course, denies such an intent.

 Undoubtedly a trial court would prevent the use of records at trial by a party who had denied their existence.   We think such a result is the appropriate sanction for the county's conduct.⁵  Thus, the county shall be precluded from introducing into evidence the Well-Baby records or any information contained therein, including any evidence or argument that a preexisting defect, whether congenital or developmental, is the cause of plaintiff's present physical or mental condition.

However, we do not intend to limit the plaintiff in his presentation of evidence involving the Well-Baby records in whole or in part.   Further, we do not intend to limit the county in its presentation of any other admissible evidence on other issues present in the case.   We find the sanctions imposed here to be appropriate;  the county will not benefit from its willfulness, but at the same time will not be prevented from defending itself on all other available grounds.   Conversely, the prejudice to plaintiff's case is ameliorated as to the two areas in question, but plaintiff is not placed in a better position on all the other issues in the case as he would have been had the county's answer remained stricken.

The alternative writ of mandate is discharged, and a peremptory writ of mandate is granted.   The trial court is directed to vacate its October 23, 1984 order in its entirety and to enter an order as set forth in this opinion.   In addition, the trial court is directed to conduct a hearing on the question of reasonable costs, including attorneys fees, incurred by plaintiff in pursuit of the orders in both the trial court and this court, and the trial court is directed to grant plaintiff reasonable costs as proved, pursuant to Code of Civil Procedure section 2034.

FOOTNOTES

1.   The Well-Baby record contains this account of the accident:  “Child injured in Clinic.   Running around Clinic [a shorthand notation that looks like an “s” with a short line over it] supervision.   Two large tables that were folded up against the wall fell over on child.   No eye witnesses known.   Very fussy—crying.    After several minutes child fell asleep.   Watched closely by Dr. Hollander.   Approx. 20 min [another shorthand notation that looks like a p with a line over it incident child began vomiting.   Was rushed to St. Judes Hosp. by Dr. Hollander and mother.”

2.   Government Code section 818 provides:  “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”

3.   The evidence in support of this finding is the evidence of gross carelessness on the part of the risk management agency in failing to make sufficient inquiry regarding the requested documents.   Of course, evidence also reveals that when a request was made to the Health Care Agency's custodian of records, the documents were promptly made available.   However, the county withheld the Well-Baby records of other patients until plaintiff subpoenaed them on the day of trial, and even then vigorously opposed the subpoena, although prior discovery orders had instructed the county to turn over those records.

4.   As noted above, plaintiff's mother is dead and, in a declaration in support of a motion below, plaintiff's father claims the minor was perfectly normal before the accident.   Further, the record before us does not reveal whether the information concerning a possible preexisting condition of microcephaly is contained in any record other than the Well-Baby record.

5.   At oral argument, the attorney for the county urged this court to fashion a sanction which specifically dealt with the prejudice to plaintiff's case.   He argued striking the county's answer was too severe a penalty and resulted in rewarding plaintiff by placing him in a better position than he would have been in had timely discovery been made.   He accepted the trial court's finding of willfulness and conceded sanctions were appropriate.   One suggested sanction was the exclusion of records and the limitation of evidence.

TROTTER, Presiding Justice.

CROSBY and WALLIN, JJ., concur.