New CA Discovery Case

discovery evasive discovery Jul 12, 2022

To do the best job possible as a mediator, arbitrator and referee, I keep up with and summarize the new published California civil cases. In this blog I discuss a new civil case that was published last month. 

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.)   

Mediation, Arbitration and Referee Services

I help attorneys and their clients as a mediator, arbitrator and referee with ADR Services, Inc. I handle cases in the areas of business, commercial, employment, insurance bad faith, insurance coverage, land use, landlord-tenant (commercial and residential), legal malpractice, medical malpractice, personal injury, real property and wrongful death. I also keep up with the new civil case law published in California. I offer Zoom services throughout California and also in-person services. I've been a California civil trial lawyer since 1980 and a member of ABOTA since 1995. I've represented both plaintiffs and defendants in a wide variety of civil cases including the areas listed above. If you'd like to work with me, please contact my case manager at ADR services, Haward Cho, [email protected], (213) 683-1600.  

California Case Summaries™

Since 2012, I've helped many California lawyers easily keep up with the new case law in their practice areas by publishing California Case Summaries™ with short summaries (one paragraph), organized by legal topic, of every new CA civil case published in monthly, quarterly and annual subscription editions. My publications are available to a limited number of subscribers, giving them a competitive advantage, and are periodically opened to new subscribers. Subscribers save time, win more, and make more money.
Join Our Email List: To get on our email list to find out when we'll next make new subscriptions available, and to get my free summaries of the 22 new civil cases published by the California Supreme Court in 2021click here. 

Until my next blog post, stay safe and healthy.

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

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