Dep't of Forestry & Fire Prot. v. Howell

• Decision Date: 06 September 2022
• Docket Number: C093352
• Parties: DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Plaintiff and Appellant, v. EUNICE E. HOWELL et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Plaintiff and Appellant,
v.
EUNICE E. HOWELL et al., Defendants and Respondents.

C093352

California Court of Appeals, Third District, Plumas

September 6, 2022

NOT TO BE PUBLISHED

(Super. Ct. No. CV0900505)

HULL, J.

This case returns to us after we previously ordered a remand with directions for further proceedings relating (primarily) to a postjudgment award of monetary discovery sanctions in favor of defendants Eunice E. Howell, individually and on behalf of Howell's Forest Harvesting, and its employees, Kelly Crismon and J.W. Bush (Howell); Sierra Pacific Industries, Inc. (Sierra Pacific); W.M. Beaty and Associates (Beaty); and multiple landowners (Landowners, and collectively, defendants).

In our prior opinion, we concluded that there was substantial evidence to support the trial court's finding that monetary sanctions were warranted, but that the trial court

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erred in the manner in which it imposed the sanctions. We remanded with directions for the trial court to reconsider the amount of monetary sanctions awarded to defendants "as a result of" plaintiff's discovery abuses and to calculate an appropriate award of statutory costs for the prevailing party defendants.

Plaintiff California Department of Forestry and Fire Protection (Cal Fire) challenges the award of monetary sanctions in the trial court's decision on remand. It contends the trial court erred because it (1) failed to follow our remand instructions and essentially repeated the same mistakes it made previously, (2) applied the wrong standard of causation, (3) concluded that defendants were not required to file a motion to compel or seek redress for discovery abuses prior to requesting sanctions, and (4) made incorrect assumptions and additional errors in calculating the sanctions award. Cal Fire also challenges the trial court's costs award.

We agree with Cal Fire's first two contentions and therefore reverse and remand (with directions) the part of the trial court's order pertaining to the monetary sanctions award. We affirm the part of the order pertaining to the costs award.

Facts and History of the Proceedings

Cal Fire previously appealed from a judgment of dismissal (case No. C074879) and various postjudgment awards of fees, costs, and discovery sanctions (case No. C076008). (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, overruled in part as stated in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 (Howell).) We rely heavily on our prior opinion for the relevant facts and procedure, supplemented where necessary by the record.

A. Origin of the Moonlight Fire

This case arises from the "Moonlight Fire," a wildfire that ignited in Plumas County on September 3, 2007, and burned approximately 65,000 acres over the course of

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several weeks. (Howell, supra, 18 Cal.App.5th at p. 162.) The fire started on property owned by the Landowners and managed by Beaty. (Id. at p. 164.) Sierra Pacific purchased standing timber on the property and contracted with Howell, a licensed timber operator, to conduct logging operations on the property. (Ibid.)

Cal Fire and the United States Forest Service (USFS) jointly investigated the cause of the fire. (Howell, supra, 18 Cal.App.5th at p. 187.) In June 2009, Cal Fire and USFS released their nearly 300-page Origin and Cause Investigation Report (the Moonlight Report). The Moonlight Report concluded that the fire started when a bulldozer operated by Howell's employees (J.W. Bush and Kelly Crismon) struck a rock or rocks, causing superheated metal fragments to splinter off and ignite surrounding forest litter. (Id. at pp. 163, 164; United States v. Sierra Pac. Indus., Inc. (9th Cir. 2017) 862 F.3d 1157, 1163.) The Report also faulted Howell's employees for allowing the fire to spread by leaving the area without inspecting for signs of fire. (Ibid.)

B. The Moonlight Fire lawsuits

In 2009 and 2010, Cal Fire, Grange Insurance Association, and an assortment of private landowners filed lawsuits against defendants seeking recovery of fire suppression and investigation costs and other monetary damages in the tens of millions of dollars. (Howell, supra, 18 Cal.App.5th at pp. 163, 175, fn. 12, 202.) In a separate but related case, the federal government filed suit against the same defendants for its damages and fire suppression costs. (United States v. Sierra Pac. Indus., Inc., supra, 862 F.3d at pp. 1163-1164.) Potential damages in the federal action exceeded $800 million. (Id. at p. 1164.)

Over the ensuing four years, the parties engaged in extensive discovery and pretrial motions in the consolidated state court action and concurrent federal action. (Howell, supra, 18 Cal.App.5th at p. 165.) Discovery included more than 400 days of depositions, 428 requests for production, 1163 special interrogatories, and 435 requests

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for admission. There were more than 35 discovery motions, nearly 100 motions in limine, and two cross motions for summary judgment.

In July 2012, the parties settled the federal action, with defendants collectively agreeing to pay $55 million and transfer 22,500 acres of land to the federal government. (United States v. Sierra Pac. Indus., Inc., supra, 862 F.3d at pp. 1164-1165.) The state cases continued after settlement of the federal case. (Id. at p. 1165.)

In July 2013, less than a week before trial in the state court actions, the trial court ruled that none of the plaintiffs could establish a prima facie case and entered a judgment of dismissal in favor of the defendants based on Cottle v. Superior Court (1992) 3 Cal.App.4th 1367 (Cottle). (Howell, supra, 18 Cal.App.5th at pp. 165, 170-171.) The trial court also granted an oral motion for judgment on the pleadings as to Cal Fire's claims against Sierra Pacific, Beaty, and Landowners. (Howell, at p. 175.)

C. The postjudgment motions

After the judgment of dismissal, defendants filed motions for attorney fees, expenses, and discovery sanctions. (Howell, supra, 18 Cal.App.5th at p. 166.) The motions were based on multiple, overlapping grounds. Defendants sought monetary and terminating sanctions under two separate sources of authority: section 2023.030 of the Civil Discovery Act (§ 2016.010 et seq.) and the trial court's inherent common law authority. (Howell, at pp. 190-191.) (Further undesignated statutory references are to the Code of Civil Procedure.) Defendants moved for attorney fees as "prevailing parties" on a contractual basis (Civ. Code, § 1717) and as private attorneys general (§ 1021.5). (Howell, at p. 198.) Defendants also moved under section 2033.420, subdivision (a) to recover costs incurred in disproving Cal Fire's denial of certain requests for admission. (Howell, at pp. 166, 202.)

In a postjudgment order, the trial court ruled that defendants are entitled to recover their requested fees, expenses, and sanctions. (Howell, supra, 18 Cal.App.5th at pp. 166-167.)

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In reaching this conclusion, the court found that Cal Fire had engaged in multiple and repeated discovery abuses. The trial court specifically described seven "examples" of discovery abuses committed by Cal Fire, namely: (1) false testimony by investigators Joshua White (White) and David Reynolds (Reynolds) regarding concealment of photographs of a white flag, a "fire origin" sketch, and other evidence that appeared to place the point of origin of the fire in a slightly different location (about 10 feet away) from that described in the Moonlight Report; (2) White's destruction of the contemporaneous field notes he prepared during his investigation; (3) the Moonlight Report's false summary of an interview with Howell employee J.W. Bush; (4) the Moonlight Report's omission of an "unsolicited false alibi" from Ryan Bauer, who had been cutting firewood in the area; (5) the Moonlight Report's omission of alleged employee misconduct at the closest federal lookout, known as the Red Rock lookout tower; (6) a false statement in the Moonlight Report that a Howell bulldozer ignited the Lyman Fire; and (7) Cal Fire's failure to produce documents responsive to a request for production relating to the "Wildland Fire Investigation Training and Equipment Fund" (the WiFITER fund), which defendants believed to be an illegal account that provided a financial incentive to hold defendants responsible for the fire. (Howell, at pp. 166, 185-189; United States v. Sierra Pac. Indus., Inc., supra, 862 F.3d at pp. 1164, 1170; United States v. Sierra Pac. Indus. (E.D.Cal. 2015) 100 F.Supp.3d 948, 967.) The trial court's order made clear that these were merely "examples" of Cal Fire's discovery abuses and not intended to be an exhaustive list of its transgressions.

In a separate order, the court found that Cal Fire's misconduct was "so pervasive that it would serve no purpose for the [c]ourt to attempt to recite it all . . . ." The court indicated that additional examples of Cal Fire's discovery abuses could be found in defendants' briefing. The court specifically referenced, without analysis, two previously-filed pleadings-one by Sierra Pacific and the other by Beaty-listing almost four dozen "examples" of alleged discovery abuses.

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In awarding terminating sanctions, "[t]he trial court found that Cal Fire's' "willful,"' 'repeated and egregious' misuses of the discovery process 'permeated nearly every single significant issue in this case' to an extent that' "threatened the integrity of the judicial process"' and made it implausible that defendants could ever receive a fair trial. The trial court further stated that 'Cal Fire's actions in initiating, maintaining, and prosecuting this action, to the present time [postjudgment] [are] corrupt and tainted. . . . [C]al Fire failed to comply with discovery orders and directives, destroyed critical evidence, failed to produce documents it should have...