Puritan Ins. Co. v. Superior Court

• Decision Date: 29 August 1985
• Docket Number: TRI-C
• Citation: 217 Cal.Rptr. 602,171 Cal.App.3d 877
• Court: California Court of Appeals Court of Appeals
• Parties: PURITAN INSURANCE COMPANY, Petitioner, v. SUPERIOR COURT of the State of California for the County of Yolo, Respondent,MACHINE CORPORATION, a corporation, Real Party in Interest. Civ. 24780.

Page 602

217 Cal.Rptr. 602

171 Cal.App.3d 877

PURITAN INSURANCE COMPANY, Petitioner, v. SUPERIOR COURT of the State of California for the County of Yolo, Respondent TRI-C MACHINE CORPORATION, a corporation, Real Party in Interest.

Civ. 24780.

Court of Appeal, Third District, California.

Aug. 29, 1985.

Cummins & White, Larry M. Arnold, Rick L. Raynsford, Newport Beach, and Moira Kristof Hummer, for petitioner.

No appearance for respondent.

Shepard & Haven, Kenneth B. Shepard and John Studarus, Sacramento, for real party in interest.

SIMS, Associate Justice.

In this case we consider what discovery sanctions are appropriate where a party's expert inadvertently loses an object of real evidence crucial to the litigation before an opposing party has had a chance to inspect or test the object. We conclude the party whose expert lost the object is properly precluded from introducing at trial expert testimony based on an examination of the lost object. However, authentic photographs of the object that are available to all parties, and expert testimony based exclusively on an examination of the photographs, should not be excluded from trial as a discovery sanction.

FACTUAL AND PROCEDURAL BACKGROUND

The missing object is a conveyor belt drive shaft used at Warm Springs Dam near Geyserville, California. The shaft failed on April 23, 1981. Five months prior to its failure the shaft had been repaired by Tri-C Machine Corporation (Tri-C).

Puritan Insurance Company (Puritan) issued a policy of insurance to its insureds Gordon H. Ball, Inc., Auburn Constructors, and Dillingham Corporation which covered, among other things, loss or damage to property including the conveyor belt system of which the drive shaft was a part. Pursuant to this insurance policy Puritan was obligated to indemnify its insureds against losses caused by the drive shaft failure. Puritan did so and obtained an assignment of rights. In the underlying action against Tri-C, ¹ Puritan claims Tri-C's repairs to the shaft were defective.

Sometime following the shaft failure Puritan had the shaft tested by its expert Robert Lewis Ray, Inc. (Ray). The shaft had also been tested and photographed by Anamet Laboratories at the request of Puritan's insured Gordon Ball, Inc. ²

In November of 1983 Puritan's counsel arranged with counsel for Tri-C and its insurer, Mission Insurance Company, to make the shaft available to Tri-C presumably for its own testing. Puritan informed Tri-C the shaft was still in the possession of Ray. However, despite several searches, Ray was unable to locate the shaft and so informed Tri-C in his response to request for production.

On October 17, 1984, Tri-C brought a motion in the trial court to compel production of the failed shaft. (See Code Civ.Proc., §§ 2031; 2034, subd. (a).) ³ On November 5, 1984, the trial court granted the motion to compel production, opining that "the failure to preserve the key evidence for inspection is at best gross negligence on the part of [Puritan] and/or its representatives." The court found the failure to produce was without substantial justification. ( § 2034, subd. (a).)

Following the motion Ray made another unsuccessful attempt to locate the failed shaft. On November 27, 1984, Tri-C noticed a motion for sanctions for Puritan's continued failure to produce the shaft. Tri-C sought "an order refusing to allow [Puritan] to support or oppose designated claims or defenses, or prohibiting it from introducing in evidence the designated samples or items of testimony, or from introducing any evidence derived from the alleged testing of said samples." The latter clause apparently referred to photographs of the shaft taken in the process of testing. In the alternative Tri-C sought as sanction dismissal of the action.

On December 17, 1984, the court granted Tri-C's motion for sanctions. The court ordered "that [Puritan] is prohibited from introducing in evidence those portions of the subject shaft, or any photographs thereof, tested, examined, analyzed and disposed of ... and is further prohibited from introducing any evidence or testimony, expert opinion or otherwise, derived from testing, examining or analyzing the portions of the shaft or any photographs thereof."

Contending the sanctions are unlawful, Puritan petitioned this court for a writ of mandate, and, on February 7, 1985, we issued an alternative writ of mandate. ( §§ 1084, 1087.)

DISCUSSION

The trial court's order precluded Puritan from introducing two categories of evidence: (1) the failed shaft, and expert testimony derived from examination of the shaft; and (2) photographs of the shaft, and expert testimony derived from examination of the photographs. As to both categories of evidence Puritan contends respondent court's order was excessive and an abuse of the discretion afforded trial courts by the civil discovery act ( § 2016 et seq; see § 2034, subd. (b)(2)). To consider Puritan's contention we turn first to the terms of the relevant statutes.

We very recently observed that "Section 2034 provides 'the exclusive mechanics for imposing sanctions for failure to comply with valid requests for discovery. [Citations.]" (Trail v. Cornwell (1984) 161 Cal.App.3d 477, 485-486, 207 Cal.Rptr. 679.) Section 2034, subdivision (a), provides in pertinent part that "Upon the refusal or failure of a party to identify documents, papers, books, accounts, letters, photographs, objects, or tangible things or to permit inspection ... after having been served with a request under Section 2031, the party serving the request may on ... notice and upon a showing of good cause make application for an order to compel compliance with the request...." ( § 2034, subd. (a).) The section goes on to provide, in subdivision (b)(2), that "If any party ... or an ... agent ⁴ ... of that party ... refuses to obey an order made under subdivision (a) ... the court may make any orders in regard to the refusal which are just, including, but not limited to, any of the following: ... (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony, ..."

We first consider whether a party "refuses" to obey a discovery order, within the meaning of subdivision (b)(2) of section 2034, when it fails to produce evidence that has previously been lost. The meaning of the term "refuses" in section 2034, subdivision (b)(2), is unclear in light of the statute's use of "refusal or failure" in subdivision (a) and its use of "willfully fails" in subdivision (d). It is uncertain whether "refuses" as used in subdivision (b)(2) connotes any failure to obey a discovery order or only a willful failure to do so. We have found no authoritative California case resolving the issue; therefore, we turn to cases interpreting analogous provisions of the Federal Rules of Civil Procedure. ⁵

The counterpart to section 2034, subdivision (b)(2), is found in Rule 37, subdivision (b)(2), of the Federal Rules of Civil Procedure. Prior to its amendment in 1970, that subdivision provided in pertinent part that "If any party ... refuses to obey an order made under Rule 34 to produce any document or other thing for inspection, copying, or photographing ... the court may make such orders in regard to the refusal as are just...." (See Societe Internationale v. Rogers (1958) 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255.) In Societe Internationale the United States Supreme Court authoritatively construed the term "refuses" in Rule 37 to mean that a party "refuses to obey" simply by failing to comply with an order. (P. 208, 78 S.Ct. P. 1094.) The high court explained, "Whatever its reasons, petitioner did not comply with the [discovery] order. Such reasons, and the willfulness or good faith of petitioner, can hardly affect the fact of noncompliance and are relevant only to the path which the District Court might follow in dealing with petitioner's failure to comply." (Ibid.; see Thompson, Sanctions in California Civil Discovery (1968) 8 Santa Clara Lawyer, 173, 176-181.) ⁶

California cases have assumed, without extensive discussion, that mere noncompliance is all that was required to impose sanctions under section 2034, subdivision (b)(2). (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 791-792 and fn. 25, 149 Cal.Rptr. 499; A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 565, 142 Cal.Rptr. 390.) However, we have found one case which holds a willful failure is required to impose sanctions under subdivision (b)(2). In Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 202 Cal.Rptr. 227 the court, discussing the range of sanctions available under subdivision (b)(2), stated that "To justify imposition of such discovery sanctions, the trial court must expressly find that the disobedient party's failure to obey was wilful." (P. 489.) However, the only authorities cited for the court's proposition were three cases interpreting section 2034, subdivision (d), which by its own terms is limited to cases of willful failure to comply. (See Weinkauf v. Superior Court (1966) 5 Cal.Rptr. 100, 64 Cal.2d 662, 664; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 22-253, 135 Cal.Rptr. 726; Fairfield v. Superior Court (1966) 246 Cal.App.2d 113, 118-119, 54 Cal.Rptr. 721.) None of these authorities suggests a willfulness requirement for violations of subdivision (b)(2). Moreover, Motown merely states its conclusion without analysis. We believe the better interpretation, which we choose to follow, is that stated by the United States Supreme Court in Societe Internationale. (See 14 Grossman & Van Alstyne, California Practice (1972) § 876, pp. 387-389.) We We next consider whether the trial court's order constitutes an abuse of discretion. Provided the sanction is authorized by statute, the choice and award of discovery sanctions is a matter within the trial...