Karz v. Karl
| Decision Date | 22 November 1982 |
| Parties | Erwin H. KARZ, Plaintiff and Appellant, v. Mary Frances KARL, et al., Defendants and Respondents. Civ. 62163. |
| Court | California Court of Appeals Court of Appeals |
Edward J. Horowitz, Los Angeles, for plaintiff and appellant.
Richard I. Wideman, Santa Barbara, for defendants and respondents.
Plaintiff Erwin Karz (hereinafter Karz) appeals from a judgment that he "shall take nothing" from defendants Harry Karl (hereinafter Karl), Debbie Reynolds (aka Mary Frances Karl, hereinafter Reynolds) and Raymax Productions, Inc. (hereinafter Raymax) in Karz' action for damages for breach of contract, fraud and conversion. The judgment was rendered in a trial department when Karz advised the trial court of his inability to prove essential elements of his case in view of a prior discovery order granting defendants' motion for sanctions which precluded him from introducing eleven different categories of proof.
The gravamen of Karz' complaint filed in December 1974 is that in January 1970, he and defendants entered into an oral joint venture agreement for the conversion of a Hollywood apartment house owned by Karz into a museum (the "Hollywood Hall of Fame") for the display of memorabilia and "props" from the entertainment industry. Defendants allegedly agreed that Karz would alter and remodel the apartment house and that defendants would obtain the props and memorabilia and provide approximately $300,000 capital for the project. Plaintiff performed all of his obligations but defendants repudiated theirs. The alleged fraud was that defendants did not intend to perform. The conversion charged was the removal from plaintiff's premises of "memorabilia and 'props' of the joint venture of the approximate value of $400,000," and converting them to defendants' own use.
By stipulation initial discovery, comprising a six-session deposition of plaintiff and production of documents by plaintiff, was completed prior to defendants' answering the complaint. The answer filed in December 1975 denied the essential allegations of each cause of action and raised affirmative defenses of limitations, laches and statute of frauds. Successive motions of defendants for judgment on the pleadings and for summary judgment were denied.
Thereafter, on June 15, 1977, plaintiff took the deposition of defendant Karl. Plaintiff's subsequent attempt to take Reynolds' deposition in November 1978 encountered great difficulties. After it was recalendared several times in late 1978 and early 1979, and Reynolds failed to appear for her deposition on March 30, 1979, plaintiff moved the court for sanctions, charging a willful failure to appear.
On April 27, 1979, the court found that Reynolds "willfully failed to appear for a deposition without proper justification" and awarded a sanction of $350 plus $65 costs of reporter. Reynolds also was ordered to appear for her deposition on May 9, 1979, the court reserving jurisdiction to impose "any additional sanctions that may be necessary." Reynolds did so appear and her deposition was conducted May 9, 10 and 16, 1979.
In the meantime, the case was set for a 30-day trial on August 21, 1979. This date conflicted with Reynolds' professional commitments and her counsel's vacation plans and a continuance of the trial to September 17, 1979 was ordered on May 31.
Both parties then engaged in further discovery. Reynolds took the deposition of a non-party witness on June 26. Plaintiff served a request on Reynolds for inspection and copying of documents and served interrogatories. Defendants, meanwhile, served a notice to take plaintiff's deposition. Both parties sought sanctions for alleged failure of the opposing party to comply with discovery demands. On September 7, 1979, the court denied both parties' motions.
On September 17, the court continued the trial on its own motion to April 14, 1980, and on the same day the parties stipulated to extend the five-year limitation under Code of Civil Procedure section 583 for bringing the action to trial to and including May 30, 1980.
The following day, September 18, 1979, defendants served an additional set of interrogatories on plaintiff. Plaintiff's answers were served by mail on October 23, 1979. On November 27, 1979, defendants served by mail their notice of motion to compel plaintiff to provide further answers. Said notice of motion was received by the clerk of the court on November 30, 1979, but was not filed until December 11, 1979, after the hearing date was changed by interlineation from December 13 to December 27. Plaintiff opposed the motion primarily on the basis that it was not timely, stating in this respect: "Where a propounding party deems further response to interrogatories is required, he must file a motion to compel further answers within 30 days of the date of service on him." Plaintiff, however, also argued the propriety of his answering certain interrogatories by reference to his deposition and asserted generally other propositions supportive of the sufficiency of his answers. After a hearing on December 27, the trial court made its order requiring "further answers without objection" within 30 days to all but 4 of the more than 25 items at issue.
Karz sought relief in this court by a petition for a writ of prohibition and mandate, challenging the trial court's jurisdiction to order further answers on the basis that defendants' motion was untimely. He sought a stay of the December 27 order, but it was denied. The petition for writ was denied by this court on January 31, 1980. Though a notice of the order of December 27 was served by mail December 28, 1979, and the order required further answers within 30 days, Karz took no action to serve further answers. A writ petition to the Supreme Court, also seeking a stay, was filed. No stay was issued and on February 27, 1980, the petition was denied.
On February 19, 1980, defendants served a notice of motion for sanctions for Karz' failure to comply with the December 27, 1979 order. The sanctions sought included an order striking out all of plaintiff's complaint and orders precluding proof on specific issues. This motion set March 10 as the date of hearing.
On March 6, 1980, plaintiff served by mail his "further responses" to the interrogatories. At the March 10 hearing, defendants' motion for sanctions was "denied without prejudice." 1
Defendants' motion for sanctions challenging the sufficiency of the "further answers" was served and filed on March 18, 1980. The hearing date set was April 3, 1980. However, before such date, Karz served a set of "supplementary" answers to several of the interrogatories. Defendants supplemented their points and authorities and declaration in support of the motion for sanctions so as to challenge each of the supplementary answers.
Defendants contended that the "further answers" and "supplemental answers" were in large part simply copies of earlier answers found inadequate and presented a 35-page detailed analysis of the claimed inadequacies. Karz' opposition did not undertake any detailed response to defendants' showing. Instead, Karz relied upon his claim that defendants waived further answers, argued defendants' failure to comply with the requirements of Code of Civil Procedure section 1008, and belatedly raised objections to the propriety of some of the interrogatories.
The April 3, 1980 hearing was not reported. Consequently, the only evidence we have of what the court determined is the two minute entries and the formal order as signed by the court. The minute entry of April 3 states:
The minute order of April 11, 1980, states:
'............. 2a, 2b, 2c, 2d, 2f, and 2h'.
"Copy of this minute order is sent to both counsel via US Mail."
On the same date, the court signed a formal order which recites as its preamble, "the Court finding that plaintiff willfully failed to make discovery and failed to follow the Court's Discovery Order of December 27, 1979, and good cause appearing therefor, ..." The formal order was in the form submitted by defendants except that it struck the first five numbered paragraphs. The stricken paragraphs dismissed the contract claims against defendants Raymax and Karl, precluded Karz from introducing evidence of the terms of his claimed contract with Reynolds or of the performance called for by Reynolds or by Karz thereunder, and precluded Karz from introducing evidence of any consideration to be received by him or by Reynolds thereunder. The operative provisions of the order as modified read as follows:
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...preparations can be made to meet them. It is impossible to discover this other than from the plaintiff." (Karz v. Karl (1982) 137 Cal.App.3d 637, 650, 187 Cal.Rptr. 183.) Appropriate written interrogatories are one of the means to accomplish the general goals of the discovery process design......
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