CERDA v. RIHANE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Elizabeth Cerda and Carmen Berges, filed a complaint alleging various causes of action arising out of the defendants' actions related to the 10 Porter Street Condominium Trust. After an arduous discovery process in which the plaintiffs were noncooperative and failed to comply with court orders, the trial judge dismissed the complaint. We affirm the judgment of dismissal.

Discussion. Sanctions imposed by a trial judge for discovery misconduct are reviewed for an abuse of discretion. Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131-132 (2002). “Involuntary dismissal is a drastic sanction which should be utilized only in extreme situations.” Monahan v. Washburn, 400 Mass. 126, 128 (1987). For dismissal to be appropriate, “there must be convincing evidence of unreasonable conduct or delay,” id., and “a finding of wilfulness, bad faith, or fault, unless it is clear that such a determination was implicit and warranted.” Gos v. Brownstein, 403 Mass. 252, 257 (1988).

Cerda engaged in a pattern of dilatory tactics and defiance of court orders. The defendants made five attempts spanning approximately eighteen months to depose Cerda -- all of which were unsuccessful. During discovery and the pretrial process, Cerda (1) defied an order to produce her driver's license to a court reporter, opting instead to hold her license up from a distance; (2) violated an order prohibiting her from recording the deposition on her own recording device, claiming implausibly that it allowed her to bring her own professional court reporter; (3) refused to answer background and substantive questions despite a determination that such questions were permissible and a court order that she must appear and testify; (4) failed to attend the fifth scheduled deposition in violation of a court order; (5) failed to bring requested documents supporting her claims and damages to the fourth deposition despite admitting that she had such documents; (6) responded to a pretrial order to produce documents by producing the equivalent of two banker boxes full of irrelevant, nonresponsive documents; and (7) failed to comply with a court order to bring a binder of all proposed exhibits, a witness list, and motions in limine to the final pretrial conference. Cerda was warned repeatedly that her continued misconduct would lead to sanctions, including possible dismissal. Despite these warnings, Cerda continued to engage in dilatory and obstructionist tactics.

Through these actions, Cerda displayed a determination to unilaterally decide what discovery was appropriate and supplant her judgment for that of the court even in the face of direct orders. The judge made explicit findings that Cerda acted in bad faith when she refused to answer preliminary questions, opted to hold up her driver's license from a distance, and intentionally misinterpreted a court order as allowing her to bring her own court reporter.⁶ Her bad faith refusal to provide complete depositions combined with multiple failures to obey court orders, are more than sufficient to justify the sanction of dismissal. See Roxse Homes Ltd. Partnership v. Roxse Homes, Inc., 399 Mass. 401, 404 (1987) (“Roxse Homes's failure to respond adequately, first to the partnership's request for discovery and subsequently to court orders, justified imposition of the ultimate sanction of judgment against it”); Eagle Fund, Ltd. v. Sarkans, 63 Mass. App. Ct. 79, 85-86 (2005) (“Sarkans' failure to provide handwriting exemplars violated a court order; set against a background of persistent foot dragging, the violation justified imposition of a default judgment”); Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 430 (1986) (entry of default was appropriate where defendants failed to comply with court order after two-year discovery history in which they refused to produce documents or produced incomplete responses).

Although Berges's conduct was arguably less overtly egregious than Cerda's, she too was complicit in defying court orders and delaying depositions.⁷ After the second deposition attempt, the judge ordered both plaintiffs to “attend and give testimony at their respective depositions” and reminded both plaintiffs that the preliminary background questions were permissible under Rule 26. Despite this order, Berges refused to answer preliminary questions on the same grounds that Cerda asserted. The refusal to answer permissible questions was found to be in bad faith.

Likewise, both plaintiffs were required to bring documents supporting their claims and damages to the fourth deposition attempt. At this deposition, however, neither Berges nor Cerda produced the documents despite acknowledging that they had such documents.⁸ Moreover, as a named trustee, Berges had equal responsibility to comply with the pretrial orders to produce documents and to bring a binder of all proposed exhibits, a witness list, and motions in limine to the final pretrial conference -- which she failed to do. Like Cerda, Berges is culpable for the overproduction of unexplained documents that had no clear relevance, as well as the failure to bring the necessary items to the pretrial conference.

Given these dilatory tactics, defiance of court orders, and both explicit and implicit findings of bad faith, we cannot conclude that the trial judge abused his discretion in entering a judgment of dismissal against Berges. See Roxse Homes Ltd. Partnership, 399 Mass. at 404; Eagle Fund, Ltd., 63 Mass. App. Ct. at 85-86; Greenleaf, 22 Mass. App. Ct. at 430.

Finally, we reject Berges and Cerda's assertion that the judge was biased and should have recused himself, whether sua sponte, upon their suggestion, or after they wrote a letter to the Chief Justice requesting his removal from the case. There is no basis in the record to suggest that the judge's impartiality could reasonably be questioned. See Lena v. Commonwealth, 369 Mass. 571, 575-576 (1976). Nor was he required to recuse himself because the letter had been written to the Chief Justice. See id. A litigant may not disqualify a judge by the simple expedient of filing a motion that lacks foundation. This argument reflects only the plaintiffs' ongoing and pervasive misunderstanding of their obligations as litigants.

Accordingly, we affirm the judgment of dismissal in its entirety.⁹ , ¹⁰

Judgment affirmed.

FOOTNOTES

6.   A finding of bad faith was also implied when the plaintiffs failed to bring documents to their depositions, as the judge noted that “[p]laintiffs going-forward at the court-ordered depositions based on their own interpretation of the validity of the notices of depositions, rather than seek[ing] court intervention by means of a protective order or motion to quash, is similar to their going forward at their earlier depositions with their own court reporter because they concluded that Judge Karp's earlier order only precluded them from using their own recording devices, and did not preclude use of a court reporter to transcribe the proceedings.”

7.   Although we do not agree with the judge's assessment that Berges and Cerda are “really one party for all intents and purposes,” we do not find such assessment to be an abuse of discretion where the plaintiffs are so clearly intertwined and equally at fault for misconduct.

8.   As noted in note 5, supra, the judge implied that the failure to bring such documents, like the decision to bring a court reporter to a prior deposition, was in bad faith.

9.   In reaching this conclusion, we have also considered, and are unpersuaded by, the plaintiffs' arguments that the judge erred in allowing document requests or ordering depositions. A belief that court orders are in error does not negate an obligation to comply. See Roxse Homes Ltd. Partnership, 399 Mass. at 406 (“Claimed defects in the scope of the order and the alleged irrelevance of the documents sought are matters that properly could have been raised in opposition to the order for compliance, but they do not justify noncompliance”). We recognize that the plaintiffs view dismissal as arbitrary where they allege that the defendants engaged in similar misconduct. However, in nearly all instances of misconduct alleged by the plaintiffs, the documents requested either did not exist or the information sought had been produced before sanctions could enter. This is distinguishable from the plaintiffs' conduct that demonstrated a disregard for the judicial process and remained uncorrected despite multiple warnings.

10.   The plaintiffs' request for appellate fees and costs is denied. The defendants' request for appellate fees and costs is denied.