Metropolitan News-Enterprise


Thursday, September 24, 2009


Page 3


Court of Appeal Upholds Sanctions Over Discovery ‘Gamesmanship’


By Steven M. Ellis, Staff Writer


A plaintiff’s objections that discovery requests for “economic damages” sustained were too vague and that follow-up questions seeking specific amounts were improper constituted “game-playing” supporting an award of sanctions, the First District Court of Appeal held yesterday.

Rejecting arguments that the requests needed to cite state law defining economic damages and that interrogatories based on answers to earlier questions were not “full and complete,” Div. Two upheld $6,632.50 in sanctions against a Contra Costa County corporation and its principal.

Writing for the court, Presiding Justice J. Anthony Kline opined that the objections by Michael H. Clement and his company were exactly the type of “gamesmanship and delay” decried by the drafters of the Civil Discovery Act, and said that the defendant’s insistence that his interrogatories were proper did not constitute a failure to meet and confer.

Clement and the Michael H. Clement Corp. sued Frank Alegre for specific performance and unspecified damages in connection with a dispute arising out of the sale of real property, but objected when Alegre served 23 special interrogatories seeking information on damages, causation and the existence of a loan commitment.

The plaintiffs each answered three of the interrogatories, but objected that further requests for a description of “all economic damages you claim to have sustained” was “vague and ambiguous” because it failed to specifically cite Civil Code Sec. 1431.2(b)(1).

They also objected that follow-up questions requesting the amount of damages identified in other interrogatories violated Code of Civil Procedure Sec. 2030.060(d) by referring to “other materials,” and claimed that their 30 days to answer did not begin until after they answered the first interrogatory.

The parties engaged in a series of “meet and confer” letters in which defense counsel, Oakland attorney Steven Piser, noted that Clement’s objection quoted Civil Code Sec. 1431.2(b)(1) as the “generally accepted definition” for economic damages, and in which Piser confirmed that the statute identified the information his client sought.

Piser also rejected Clement’s argument that interrogatories incorporating earlier answers by reference violated state law, but Clement’s counsel, Samuel E. Goldstein of Walnut Creek, maintained his client’s objections and suggested Piser redraft the interrogatories.

Alegre ultimately moved to compel responses and for sanctions. Discovery referee Laurence D. Kay found that the plaintiffs had “deliberately misconstrued” the question as to economic damages, and that the objection to the remaining interrogatories was “unreasonable, evasive, lacking in legal merit and without justification.”

Kay also determined that the parties’ correspondence showed them at an impasse that could not be resolved through negotiation, and rejected as “without merit” plaintiffs’ suggestion that it was Alegre who failed to properly engage in the meet and confer process.

Contra Costa Superior Court Judge Barry Baskin adopted Kay’s recommendations, and ordered plaintiffs to answer the interrogatories and to reimburse Alegre for fees incurred.

On appeal, the plaintiffs renewed their argument that “economic damages” was ambiguous for a lack of definition in Alegre’s discovery requests, but Kline rejected the contention as “preposterous in the circumstances presented,” regardless of whether the plaintiffs or Goldstein intended to be evasive.

He also said that Code of Civil Procedure Sec. 2030.060(d)’s completeness requirement was intended to keep parties’ interrogatories within a 35-question limit, and wrote that “plaintiffs seized on what might have been at most an arguable technical violation of the rule, to object to interrogatories that were clear and concise where the interrogatories did not even arguably violate the presumptive numerical limitation set by statute.”

Turning to the meet and confer process, Kline further opined, “[t]hat Piser refused to be bullied into re-writing adequate interrogatories and extending more time for responses does not constitute a failure to meet and confer, in view of the entire correspondence between the parties.”

However, he observed:

“[R]esort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone‘s admonitions in [Townsend v. Superior Court (1998) 61 Cal.App.4th 1431] that ‘the statute requires that there be a serious effort at negotiation and informal resolution.’…

“Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that ‘[a]rgument is not the same as informal negotiation’…; that attempting informal resolution means more than the mere attempt by the discovery proponent ‘to persuade the objector of the error of his ways’…; and that ‘a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel.’ ”

Justices Paul R. Haerle and James A. Richman joined Kline in his opinion.

The case is Clement v. Alegre, 09 S.O.S. 5743.


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