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Justice Wiley Lectures Bar to Be Forthright In Crafting Clients’ Discovery Responses
By a MetNews Staff Writer
Court of Appeal Justice John Shepard Wiley Jr. of this district’s Div. Eight yesterday offered advice to members of the bar not to prepare discovery responses that are evasive.
He wrote:
“California’s civil discovery process aims to unearth the truth of the case, thus facilitating settlement on the basis of the mutually expected value of the suit. Evasive discovery responses frustrate this goal by concealing the truth. A party cannot evade discovery duties and then try to defeat summary judgment by adding factual claims to create last-minute disputed issues. That was the tactic here, and it fails.
“We publish to reiterate you harm your client’s interest when you craft or transmit evasive discovery responses. You likewise harm your own prospects if ever you hope for a fee award….
“Plaintiff Beth Field answered a key contention interrogatory with one word: ‘Unsure.’ When later confronted with a defense summary judgment motion, however, Field developed belated clarity and finally specified the type of wrongdoing she was accusing the defendant of committing. We affirm because the trial court properly granted the motion.”
Traber Affirmed
Wiley’s opinion affirms a summary judgment granted by Los Angeles Superior Court Judge Theresa M. Traber in favor of Rushmore Loan Management Services, LLC and others. They were defendants in Field’s action for wrongful foreclosure.
Her answer of “Unsure” was in response to an interrogatory asking whether she contended that the notice of trustee sale was not mailed to her in compliance with statute. It was only after Rushmore moved for summary judgment that she contended that the notice was not received by her.
Wiley commented:
“It was unjust and improper for Field to swear during discovery she was ‘[ujnsure’ whether Rushmore’s notice was proper but then to contradict this position during summary judgment by swearing the notice was improper because she never got it.
“Code of Civil Procedure section 2030.310 provides a mechanism for parties to amend responses to interrogatories under certain circumstances, yet Field did not attempt to amend.
“A party opposing summary judgment may not move the target after the proponent has launched its arrow. Rushmore’s contention interrogatory sought to pin down Field’s abstract theory of wrongful disclosure by getting her to specifics. Field’s one-word answer was ‘Unsure.’ This response was too clever by half. Field had to be diligent and straightforward in responding to discovery….She could not feint with ‘Unsure’ and then later seek to create a disputed issue of fact with assertions she had failed to formulate or to disclose during discovery.”
Counsel’s Assistance
The jurist added:
“Parties prepare interrogatory answers with the assistance of counsel, which justifies a broad duty of response.”
The home that was foreclosed on is in Bellagio Estates, a gated community in Calabasas. Its estimated value is $2.3 million.
The case is Field v. U.S. Bank National Association, B309111.
Encino attorney Steven Michael Tamer represented Field on appeal, and was also her lawyer in the trial court. William G. Malcolm and Brian S. Thomley of the Irvine firm of Malcolm Cisneros were appellate counsel for the defendants.
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