Parker v. Wolters Kluwer U.S., Inc.

• Decision Date: 03 April 2007
• Docket Number: No. B190805.,B190805.
• Citation: 149 Cal.App.4th 285,57 Cal.Rptr.3d 18
• Court: California Court of Appeals Court of Appeals
• Parties: Leonard O. PARKER, Plaintiff and Appellant, v. WOLTERS KLUWER UNITED STATES, INC., et al., Defendants and Respondents.

57 Cal.Rptr.3d 18

149 Cal.App.4th 285

Leonard O. PARKER, Plaintiff and Appellant, v. WOLTERS KLUWER UNITED STATES, INC., et al., Defendants and Respondents.

No. B190805.

Court of Appeal, Second District, Division 7.

April 3, 2007.

Certified for Partial Publication.^*

Leonard O. Parker, in propria persona, for Plaintiff and Appellant.

Pillsbury Winthrop Shaw Pittman LLP, George S. Howard, Jr., San Diego, and Daphne P. Bishop, Los Angeles, for Defendants and Respondents.

JOHNSON, Acting P.J.

After previous orders and monetary sanctions failed to bring about Parker's compliance with the discovery process the trial court sanctioned Parker by dismissing his complaint against all defendants and entered his default on the cross-complaint brought by two of the defendants. Parker appeals from the ensuing judgment and challenges the validity of the underlying discovery orders which led to it.

We affirm the judgment in part and reverse it in part. We reverse one of the monetary sanction orders. We hold the trial court erred in imposing terminating sanctions in favor of parties who did not propound discovery themselves or show how they were prejudiced by Parker's failure to comply with the discovery requests propounded by others.

FACTS AND PROCEEDINGS BELOW

Parker brought an action against his former employer, Wolters Kluwer United States (WKUS), its subsidiary CCH, Inc.,¹ and three of its employees, Cyndi Andreu, Jackie Staley and Kathy Baker, alleging various employment-related torts and breaches of contract. Defendants answered the complaint and WKUS filed a cross-complaint to recover excess benefits paid to Parker under its short-term disability plan.

In response to the cross-complaint, Parker filed demurrers, motions to strike and a motion to quash service. He also demurred and moved to strike the defendants' answer to his complaint. The trial court denied Parker's motions and overruled his demurrers. Parker then answered the cross-complaint.

WKUS attempted to obtain discovery from Parker. As we discuss more fully below, Parker failed to properly respond to interrogatories and to submit to a deposition. After monetary sanctions did not result in Parker's cooperation the trial court struck Parker's complaint as to all four defendants and entered his default on the cross-complaint.

Following a default prove-up the trial court entered judgment in favor of WKUS on its cross-complaint in the amount of $3,698.14 plus prejudgment interest and included in the judgment a $2,200 discovery sanction in favor of WKUS for Parker's refusal to respond to WKUS's interrogatories.² The judgment also dismissed Parker's complaint as to all four defendants.

The trial court denied Parker's motions to vacate, set aside and reconsider its judgment and orders. Parker filed a timely appeal from the judgment through which he also challenges the trial court's orders with respect to the pleadings and discovery.

DISCUSSION

I. AN APPELLATE BRIEF INCORPORATING BY REFERENCE POINTS AND AUTHORITIES FILED IN THE TRIAL COURT DOES NOT SATISFY THE REQUIREMENT A BRIEF "SUPPORT EACH POINT BY ARGUMENT AND, IF POSSIBLE, BY CITATION OF AUTHORITY." (CAL. RULES OF COURT, RULE 8.204(a)(1)(B).)

Throughout his brief on appeal Parker alludes to arguments he made in the trial court and purports to incorporate these arguments by reference in his appellate brief. It is well-established, however, this practice does not comply with rule 8.204(a)(1)(B)³ of the California Rules of Court which requires an appellate brief "support each point by argument and, if possible, by citation of authority."⁴

While incorporation by reference might seem to make sense ecologically, by reducing the amount of paper used in appellate briefs, the actual result would be to increase the amount of paper used in an appeal. The rules require an original and four copies of the appellate brief.⁵ The original brief stays with the record on appeal. Each of the three justices on the panel deciding the case receive copies of the briefs which they can use at their desks, work on at home, or take with them when traveling for an engagement outside the court. The fourth copy remains in the clerk's office for public inspection. Only one copy of the trial court record is filed in the appellate court, however.⁶ If all three justices had to share this single record in order to review, research and evaluate a party's arguments the time it would take for the court to decide the appeal would considerably increase. This would work a hardship on the parties to that appeal and to the parties in other appeals awaiting their turn for consideration and decision. Alternatively, four copies of the trial court record would have to be filed with the Court of Appeal. Because these records often consist of thousands of pages it is easy to see how the amount of paper used in the appeal would increase significantly.

Therefore, in deciding the issues in this appeal we have not considered Parker's "incorporated" arguments.⁷

II.-IV.^**

V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN IMPOSING A TERMINATING SANCTION BY DISMISSING PARKER'S COMPLAINT AGAINST WKUS.

A. Events Leading Up To The Terminating Sanction.

1. Failure to respond to interrogatories.

In June 2005 WKUS served Parker with a set of form interrogatories and a set of special interrogatories. Parker did not answer these interrogatories within the time provided by statute. After several telephone calls and e-mails from counsel for WKUS, Parker promised to serve his responses by August 5, 2005. When no responses arrived by August 17 WKUS filed a motion to compel. This motion was taken off calendar when Parker served his responses later in August. Parker did not verify his responses and objected to some interrogatories although all objections were waived because the responses were late.¹⁹ In addition, WKUS found many of Parker's responses inadequate.

Parker ignored WKUS's efforts to meet and confer concerning his responses. Therefore, in October 2005 WKUS filed a motion to compel further answers to the form and special interrogatories. In his opposition to the motion Parker argued his responses were adequate and proper but did not deny his failure to meet and confer with WKUS regarding those responses.

In November 2005 the trial court ordered Parker to provide supplemental responses, properly verified, within ten days of its order. It sanctioned Parker in the sum of $2,220.00. At the time of the motion for terminating sanctions in December 2005 Parker still had not served his supplemental responses.

2. Failure to attend and participate in depositions.

WKUS noticed Parker's deposition for August 29, 2005. Parker appeared 40 minutes late, refused to be sworn or testify and left stating: "This deposition is over." After Parker refused to reconsider his position, and with trial three months away and the deadline for filing a motion for summary judgment one month away, WKUS filed a motion to compel Parker's deposition. The trial court granted this motion and ordered Parker to appear for his deposition on October 24, 2005. The court denied WKUS's request for monetary sanctions.

Parker arrived for his October 24 deposition with his one or two year old granddaughter whom he brought with him into the deposition room. The child was sick and by Parker's own admission had "been crying all day" and was "screaming and hollering" throughout the deposition. After being deposed for approximately an hour Parker informed defense counsel he was leaving to take his granddaughter to a doctor and would not return to Los Angeles "for no deposition ... unless you pay for it." Defense counsel stated to Parker:

"[I]f you need to take your granddaughter to the doctor, you should take her to the doctor" but counsel notified Parker he would seek an order from the trial court directing him to return to resume his deposition.

On October 26, 2005 the trial court issued an ex parte order directing Parker to appear for his deposition on November 8 "unaccompanied by his granddaughter or any other person other than an attorney" and awarded sanctions against Parker in the sum of $1,619.75.

Parker failed to appear for his court-ordered deposition on November 8. He gave no prior warning he intended to disobey the trial court's order and did not respond to telephone calls from defense counsel regarding his whereabouts.

By this time the date for filing a summary judgment motion had passed, trial was less than 30 days away, the status conference was 20 days away and WKUS had not received Parker's supplemental responses to interrogatories nor had it been able to complete his deposition. The trial court granted defendants' ex parte motion to continue the pretrial and trial dates.

On November 16 all four defendants moved for terminating, evidence and monetary sanctions against Parker. The motion was based on Parker's conduct described above as well as other less serious violations of the discovery rules. The trial court granted the motion finding "the failure of plaintiff to provide written responses to discovery and the failure of plaintiff to appear for his deposition, pursuant to the October 26, 2005 order, to be willful and without justification." As a sanction the court struck Parker's complaint as to all four defendants and his answer to the WKUS cross-complaint and entered his default on the cross-complaint.

Prior to the default prove-up on the cross-complaint Parker made, and the trial court denied, a motion to vacate the default and reinstate his complaint and his answer to the cross-complaint.

At the prove-up hearing on the cross-complaint the trial court awarded damages to WKUS in the sum of $3,698.14 plus prejudgment interest. The court also added to the judgment the $2,200 sanction for failing to file supplemental responses to interrogatories.

Following entry of judgment Parker moved to set aside the judgment and to reconsider the judgment and orders of the court....