New CA Discovery Case

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Discovery Abuse

Unfortunately, California attorneys far too often receive evasive and nonresponsive discovery responses from opposing counsel. Last month, in a decision clearly warning attorneys to not provide evasive discovery responses, the Second District Court of Appeal published a new case addressing whether a party can change an earlier evasive discovery response. A video discussing the case is above and my summary of the case is below.

New Discovery Decision  

Field v. U.S. Bank Nat. Assn. (2022) _ Cal.App.5th _ , 2022 WL 2071074: The Court of Appeal, in a decision clearly warning parties and their attorneys not to provide evasive discovery responses, affirmed the trial court's order granting defendants' motion for summary judgment. Plaintiff executed a 2007 note for over a million dollars, she defaulted on her payments and applied for a loan modification in 2017. After a 2018 foreclosure sale, plaintiff filed a wrongful foreclosure action against defendants. During discovery, plaintiff answered a special interrogatory as follows: "Do YOU contend that the [Notice of Trustee Sale] that YOU reference in paragraph 15 of the [Second Amended Complaint] was not mailed to YOU in compliance with California Civil Code section 2924b? If so, then please provide all facts RELATED TO this contention. Answer: Unsure." Defendants moved for summary judgment on the ground the foreclosure against plaintiff was legally sound. Defendants showed they properly recorded the notice of the proposed trustee sale. Plaintiff opposed the motion on the ground defendants never served her with this notice. As part of her opposition, plaintiff contradicted her discovery response about being "Unsure": now she was sure, and she swore she never received the notice. The trial court properly granted summary judgment. It was unjust and improper for plaintiff to swear during discovery she was "unsure" whether defendants' 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 provided a mechanism to amend responses to interrogatories under certain circumstances, but plaintiff did not attempt to amend. Plaintiff provided a cryptic non-answer that could achieve only obfuscation. The Legislature intended our discovery statutes would take the game element out of trial preparation. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) Trial courts encountering such an abuse are free to disregard a later declaration that hopes to supplant tactical or slothful ambiguity with tardy specificity. (C.A. 2nd, June 9, 2022.)  

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I help attorneys and their clients as a mediator, arbitrator and referee with ADR Services, Inc. I handle cases in the areas of business, employment, insurance bad faith, insurance coverage, legal malpractice, medical malpractice, personal injury, real property and wrongful death via Zoom services throughout California and also in-person services. To schedule a matter please contact my case manager at ADR services, Haward Cho, [email protected], (213) 683-1600.  

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Best regards,
Monty A. McIntyre, Esq.
California Case Summaries™
Mediator, Arbitrator & Referee
CA Civil Trial Attorney Since 1980
ABOTA Member Since 1995
Past President San Diego County Bar Assn., SD ABOTA Chapter
Phone: (619) 990-4312.
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