Opinion
No. 59795-7-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-32694-8, Charles W. Mertel, J., entered March 2, 2007.
Affirmed by unpublished per curiam opinion.
In this action for wages appellants seek review of a trial court order imposing discovery sanctions. Finding no abuse of discretion, we affirm.
The appellants' brief offers this court scant guidance in evaluating the merits of their appeal. RAP 10.3 requires that each factual statement in a brief be accompanied by a reference to the record. The appellants' brief consists of numerous bald and inflammatory assertions largely unsupported by citation to the record. Where the appellants do cite to the record, the citations are often to irrelevant or nonexistent portions of the record, or to lengthy, undifferentiated sections of the record without any specific reference to the relevant pages.
RAP 10.3(a)(5)
Likewise, much of the legal argument in the brief consists of conclusory reasoning, sweeping assertions, and over-heated rhetoric.
This court is not obliged to sift through the record to seek out documents necessary to support the appellants' argument. Nor will this court ordinarily review assignments of error or consider an issue unsupported by citation to the record and reasoned argument.
Post v. City of Tacoma, 140 Wn. App. 155, 160, 165 P.3d 37 (2007).
State v. Nelson, 131 Wn. App. 108, 117, 125 P.3d 1008 (2006); Eugster v. City of Spokane, 118 Wn. App. 383, 424-425, 76 P.3d 741 (2003).
The respondent's brief, however, is sufficiently clear and well supported by citation to the record that this court can dispose of the issues raised in this case on the merits.
On March 2, 2007, the trial court issued an order granting the respondents' motion for discovery sanctions, dismissing the appellants' claims without prejudice, and assessing costs in the amount of $5,809.94.
In its order, the court reviewed the history of the parties' discovery disputes.
After the appellants failed to submit answers to the respondents' first interrogatories and requests for production, the trial court entered an order compelling the appellants to serve full and complete answers, without objections, by November 3, 2006. After the appellants' answers were served, the court ruled that the answers were incomplete and evasive and asserted objections to interrogatories in violation of its order.
The appellants produced their documents on November 6, 2006, in the form of a compact disc containing 2,094 pages of miscellaneous documents, without any differentiation or indication of any kind as to which documents were intended to be responsive to which requests for production, again in violation of the court's order.
During a deposition of respondent Sonny Yi, respondents' counsel, Terence McGee, made four objections. Appellants' counsel, Dennis Moran, consequently adjourned the deposition, and moved for an order to compel, seeking a prohibition of any interruption other than objections to the form of question. In response, McGee conceded that it had been inappropriate for him to instruct Yi not to answer several questions on the ground that they had been asked and answered. The court issued an order prohibiting counsel from interrupting deposition questioning except to make concise objections to the form of the question or to instruct Yi not to answer based upon legal privilege.
Yi was deposed a second time. This time, it was McGee who terminated the deposition under CR 30(d) on the grounds that Moran was conducting the deposition in bad faith and in such a manner as to annoy, embarrass, or oppress Yi. Yi moved for a protective order and sought a special discovery master. His motion was denied, but the trial judge ordered that he be notified of the date and time of the next deposition so that he could stand by to rule on disputes by telephone.
Yi's next scheduled deposition was canceled by appellants' counsel without explanation.
Depositions of the appellants were noted for January 23, 24, and 30, 2007. The complaint described all the appellants as residents of King County. Nevertheless, Moran informed McGee that four of the appellants would be available only by telephone unless the respondents agreed to pay their travel expenses. McGee replied that the appellants were duty bound either to appear or to move for a protective order. There followed an e-mail exchange in which Moran continued to insist that the respondents pay the appellants' expenses, although he did not state directly that the appellants would not appear unless their expenses were paid. Two days before the first depositions were scheduled, McGee e-mailed Moran stating, "Unless we have your unambiguous confirmation that [the appellants] won't appear as noted, we will proceed as though they will." Moran did not respond, nor did he move for a protective order. None of the appellants appeared for their scheduled depositions.
Appellants noted the deposition of Ocean Treasures, LLC, at Moran's office on January 29, 2007. When McGee arrived for the deposition he was informed that the deposition had been cancelled, although appellants' counsel had provided no notice of cancellation.
McGee requested that Moran provide him with copies of documents Moran had received from Bank of America under a subpoena duces tecum. Moran agreed to have the documents copied by a commercial copying company. Of the 1,477 pages of documents produced, only 270 were Bank of America documents. The remaining 1,177 pages were copies of documents submitted by respondent Sonny Yi in a bankruptcy action, and were sandwiched in between the banking documents. The cost of the redundant documents was $258.94.
The respondents filed a motion for sanctions on February 12, 2007, noting that trial was set for March 26 and that discovery had concluded on February 5.
Two days after the respondents filed their motion for sanctions, the court held a previously scheduled pretrial conference to determine "the viability of the current trial date." At the conference, the court continued the trial date from March 26 to October 15, 2007, and directed counsel to revise discovery and other pretrial deadlines accordingly.
The court subsequently granted the respondents' motion for sanctions. This appeal followed.
DISCUSSION Standard of Review
A trial court exercises broad discretion in imposing discovery sanctions, and its determination will not be disturbed absent a clear abuse of discretion. An abuse of discretion occurs when a decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. A discretionary decision rests on "untenable grounds" or is based on "untenable reasons" if the trial court relies on unsupported facts or applies the wrong legal standard. The court's decision is "manifestly unreasonable" if the court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take.
Mayor v. Sto Indus., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
Mayor, 156 Wn.2d at 684.
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
Rohrich, 149 Wn.2d at 654.
The law concerning dismissal of a complaint as a sanction for discovery abuse is well settled in this state. The civil rules provide that a court may impose sanctions for a party's failure to abide by discovery orders. The rules also grant the court authority to dismiss an action for noncompliance with a court order.
Rivers v. Wash. State Conf. of Mason Contrs., 145 Wn.2d 674, 686, 41 P.3d 1175 (2002).
CR 37(b)(2)
Rivers, 145 Wn.2d at 686-87, citing CR 41(b). CR 41(b) reads: "Involuntary Dismissal; Effect. For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or any claim against him or her."
When a trial court imposes dismissal in a proceeding as a sanction for violation of a discovery order, it must be apparent from the record that
(1) the party's refusal to obey the discovery order was willful or deliberate,
(2) the party's actions substantially prejudiced the opponent's ability to prepare for trial, and
(3) the trial court explicitly considered whether a lesser sanction would probably have sufficed.
Rivers, 145 Wn.2d at 686-87.
Willfulness
A party's disregard of a court order without reasonable excuse or justification is deemed willful. The court found the appellants' failure to comply with its October order to be willful. A review of the answers and some of the appellants' other discovery violations is instructive.
Interrogatory No. 1, for example, requested the name, address, employer, and telephone number of each person who supplied information for or answered each interrogatory, and what information that person provided. The answer stated simply, "See below." Even taken in conjunction with other answers provided, this answer failed to identify any individual, any contact information, or any information that individual might have provided.
Interrogatory No. 2 requested the name, address, employer, and telephone number of each person who had knowledge of the facts or allegations stated in the complaint, or of any facts relevant to the claims or defenses in the case, and a detailed description of the knowledge possessed.
The appellants' answer referred the reader to the appellants' respective declarations detailing their personal knowledge produced as part of an administrative claim filing in bankruptcy court. It also referenced "all witnesses disclosed on plaintiff's primary disclosure served on October 23, 2006."
In answer to a request for the identity of each person consulted as a potential expert witness, the appellants asserted a work product privilege objection in violation of the court order barring objections.
Interrogatory No. 5 sought detailed descriptions of the information upon which allegations in the complaint were based. In answer, the appellants referred generally to the bankruptcy documents, and then repeated their allegations. In answer to Interrogatory No. 10, the appellants referred to an "above list of documents identified." There is no such list.
The appellants answered numerous interrogatories with a blanket reference to voluminous documents submitted to the bankruptcy trustee by respondent Yi without indicating which specific documents were relevant.
The appellants submitted a compact disc containing 2,094 pages of sundry documents, without any differentiation or indication as to which documents were intended to be responsive to which requests for production, as required by CR 34(b).
The appellants failed to appear for their depositions, and did not seek a protective order. Likewise, when McGee appeared for the Ocean Treasures, LLC, deposition, he was informed that it had been cancelled without notice.
In Rivers v. Washington State Confederation of Mason Contractors, our Supreme Court affirmed a holding by this court that failure to respond fully and without objection to a court order to compel is evidence of willful disregard. In Rivers, the court ordered the plaintiff to fully answer the respondent's interrogatories and request for documents without objection. Despite that order, the plaintiff continued to object to interrogatories, and many of the answers were evasive and incomplete. This court affirmed that failure to comply with an order to compel without reasonable excuse impels a conclusion that the refusal was willful.
145 Wn.2d 674, 41 P.3d 1175 (2002).
Rivers 145 Wn.2d at 689-93.
Rivers, 145 Wn.2d at 691.
Rivers 145 Wn.2d at 691.
Rivers. 145 Wn.2d at 693.
As in Rivers, there is ample evidence in the record to support the court's finding of willfulness.
Prejudice
In its order dismissing the appellants' claims, the court ruled that the appellants' continued violation of its October order and their failure to appear for their own depositions had severely prejudiced the respondents' ability to prepare for trial. The appellants' incomplete and evasive answers, their cumbersome submission of thousands of pages of undifferentiated documents, their submission of documents beyond those sought pursuant to the subpoena duces tecum, and their failure to appear at their own depositions were sufficient to support the court's finding of prejudice.
Sanctions
A court may impose discovery sanctions at its discretion, but the sanctions should be proportional to the nature of the discovery violation and the surrounding circumstances. Before resorting to the sanction of dismissal, the trial court must clearly indicate on the record that it has considered less harsh sanctions.
Burnet v. Spokane Ambulance, 131 Wn.2d 484, 495-98, 933 P.2d 1036 (1997).
Rivers, 145 Wn.2d at 696.
The trial court explicitly considered whether lesser sanctions would have sufficed, and concluded that lesser sanctions would not cure the prejudice to the appellants. The court had already imposed lesser sanctions against the appellants on the respondents' motion to compel, but those sanctions had proved ineffective.
The respondents sought to have the appellants' claims dismissed with prejudice. The court declined to do so. Instead, it imposed a lesser penalty by dismissing the appellants' claims without prejudice. The appellants were not precluded from reviving their claims, the court ruled, but any effort to litigate such claims in the future would be conditioned on payment of all sanctions in full by the appellants. In its ruling, the court balanced the sanctions against the nature of the discovery violations and the surrounding circumstances, and held that dismissal without prejudice was appropriate.
The appellants argue that the court should have entertained oral argument before imposing sanctions. Oral argument is not prescribed for motions for sanctions for discovery abuse.
Rivers, 145 Wn.2d at 684.
The court did not abuse its discretion in dismissing the appellants' claims and awarding costs to the respondents.
The Yi Deposition
The appellants also assert that the court abused its discretion by not enforcing its orders concerning respondent Sonny Yi's deposition. This assertion is almost entirely unsupported by legal argument. There is, in any event, nothing in the record to support a conclusion that the court abused its discretion.
Frivolous Appeal
The respondents assert that this appeal is frivolous. In determining whether an appeal is frivolous, we are guided by the following considerations: (1) a civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
Tiffany Family Trust v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005).
While the appellants' brief fails to adequately cite to the record and relies on emotional appeals and conclusory reasoning, it cannot be said that there are no debatable issues upon which reasonable minds might differ, or that it is so totally devoid of merit that there is no reasonable possibility of reversal.
Attorney Fees
Respondents seek attorney fees under RAP 18.9 on the grounds that the appeal is frivolous. As we hold the appeal is not frivolous, we decline to award attorney fees.
Affirmed.