Second District, Division Three Decides Sanctions Unwarranted Because The Underlying Conduct Was Not Egregious in Nature.
In New Albertsons, Inc. v. Superior Court (Shanahan), Case No. B207661 (2d Dist., Div. 3 Dec. 10, 2008) (certified for publication), the Court of Appeal—in a 3-0 opinion authored by Presiding Justice Croskey—issued mandate to allow withdrawal and amendment of a request for admission response and overturning nonmonetary sanctions (e.g., an evidence sanctions and adverse jury instruction on spoliation) because no prior order had been entered compelling a further response to a relevant document demand.
Many of the discovery statutes state that the court can impose issue, evidence, or terminating sanctions only if a party fails to obey a court order compelling discovery. The New Albertsons court strengthens this general principle in the context of many discovery/spoliation disputes. It also distinguishes decisions such as Do It Urself Moving Storage, Inc. v. Brown, Leifer, Slatkin & Berns, 7 Cal.App.4th 27 (1992), Vallbona v. Springer, 43 Cal.App.4th 1525 (1996), Pate v. Channel Lumber Co., 51 Cal.App.4th 1447 (1997); Williams v. Russ, 167 Cal.App.4th 1215 (2008); Karlsson v. Ford Motor Co., 140 Cal.App.4th 1202 (2006); and Mileikowsky v. Tenet Healthsystem, 128 Cal.App.4th 262 (2005) as involving egregious misconduct, violations of agreements to preserve evidence, a willful pattern of discovery abuses, or misrepresentations about the existence or availability of certain proof.
Based on the policy favoring adjudications on the merits, the Second District, Division Three also overturned the trial court’s decision to not allow amendment of a request for admission, determining that the admission withdrawal was not substantially prejudicial or that the mistake was inexcusable in nature.
BLOG BONUS COVERAGE—A similar result was reached in an unpublished Fourth District, Division Three opinion authored by Justice Fybel. In Miley v. Lopez, Case No. G032106 (4th Dist., Div. 3 July 20, 2004) (unpublished), a trial court precluded a defendant from testifying in a car accident case, through plaintiff's in limine motion, based on defendant's failure to appear at a deposition four months earlier. The Court of Appeal reversed this evidentiary sanction because the specific deposition discovery statute required that defendant first disobey an order compelling his deposition attendance/testimony before more draconian sanctions could be imposed. (See Slip Opn., at 10-11, relying on Code Civ. Proc., § 2025(j)(3).) Because no prior order was obtained compelling a deposition which was disobeyed, the pretrial preclusion order was erroneous. Justice Fybel also distinguished Do It Urself Moving and Pate, finding that there was no showing that a motion to compel the deposition would have been futile or would have failed to produce the desired result. Horvitz & Levy, by the way, was winning appellate counsel in both New Albertsons and Miley (with the appellate work headed by David Axelrad).