Stein v. Hassen

• Citation: 109 Cal.Rptr. 321,34 Cal.App.3d 294
• Court: California Court of Appeals Court of Appeals
• Decision Date: 19 September 1973
• Parties: Betty STEIN, Plaintiff and Respondent, v. Erwin E. HASSEN, Defendant and Appellant. Civ. 40995.

Page 321

109 Cal.Rptr. 321

34 Cal.App.3d 294

Betty STEIN, Plaintiff and Respondent, v. Erwin E. HASSEN, Defendant and Appellant.

Civ. 40995.

Court of Appeal, Second District, Division 1, California.

Sept. 19, 1973.

Robert E. Weiner, Malibu, for defendant and appellant.

Loeb & Loeb, and Andrew S. Garb, Los Angeles, for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

In her complaint for monies due on two promissory notes executed by E. E. Hassen, president or manager of Towne Avenue Hospital and Sanitarium, ¹ plaintiff sued Towne, two named corporations and Hassen personally (appellant herein), alleging that Towne is the Alter ego of Hassen and the other two corporations. Subsequent to the filing of defendant's answer and counterclaim plaintiff filed and served upon him 78 interrogatories wherein she sought varied information concerning his relationship to the corporation, any defense he might assert against his personal liability on the notes, and matters pertaining to his counterclaim; defendant filed what he asserted to be answers thereto. Thereafter plaintiff noticed motion to compel further answers on the ground that certain of defendant's answers were nonresponsive, incomplete and evasive and for monetary sanctions--reasonable expenses incurred in obtaining the orders, including attorneys' fees. Meanwhile defendant filed and served an unsigned unverified document purporting to contain additional answers.

On September 2, 1970, plaintiff's motion was heard by Commissioner Gerald Malkan, Judge Pro Tempore. Plaintiff was represented by counsel; defendant appeared in propria persona. ² At the commencement of the hearing Commissioner Malkan announced that in the absence of any objection it would be deemed stipulated that he could hear and decide the matters at issue. Defendant voiced no objection. The court granted plaintiff's motion respecting certain interrogatories--ordering defendant to make additional answers to them within 30 days--and denied it as to others, found 'the failure of Erwin E. Hassen to permit timely discovery was wilful and without substantial justification,' ordered defendant to pay plaintiff the sum of $150 as expenses within 30 days and denied her request for attorneys' fees. The minute order of September 2 reflects the court's ruling and recites 'Referred to Commissioner Malkan for hearing as judge pro tempore, appearing counsel stipulates orally to such hearing.'

Defendant not having complied with the September 2 order, plaintiff on October 8 noticed for October 19 her motion to strike answer and counterclaim, enter judgment by default in her favor and require defendant to pay her reasonable expenses, including attorneys' fees. On October 13 defendant noticed for October 29 his motion 'for reconsideration of (September 2 order for) imposition of sanctions.' On October 19 the parties appeared in the courtroom of Judge Pro Tempore Malkan defendant again appearing in propria persona; again Malkan announced that in the absence of any objection it would be deemed stipulated that he could hear the matter, and defendant voiced no objection. The court continued the matter for 10 days (until October 29) and ordered defendant to serve and file further answers to the interrogatories it had earlier found required additional response, by 4 p.m., on October 23, found 'the failure of defendant Erwin E. Hassen to permit timely discovery was wilful and without substantial justification' and ordered defendant to pay another $150 to plaintiff, 'as additional expenses,' within 10 days. The minute order of October 19 incorporating the court's ruling recites 'Referred to Commissioner Malkan for hearing as judge pro tempore. Appearing counsel stipulate(s) orally to such hearing.'

Meanwhile, on October 23 defendant noticed motion 'for reconsideration of (October 19 order for) imposition of sanctions,' ³ and filed and served 'Supplemental Answers of (sic) Interrogatories.' On October 29 defendant in propria persona and plaintiff's counsel appeared before Judge Max F. Deutz who stated: 'If there be no objection, it will be stipulated that he (Malkan) may act as Judge Pro Tem'; defendant voiced no objection. The court granted plaintiff's motion; it found that 'the failure of defendant Erwin E. Hassen to permit timely discovery was wilful and without substantial justification and continued to be wilful and without substantial justification' and ordered stricken defendant's answer and counterclaim and entry of default. The minute order of October 29 recites, 'Referred to Commissioner Malkan for hearing as judge pro tempore. Appearing counsel stipulate(s) orally to such hearing.' Thereafter, defendant noticed motion for reconsideration of the court's last ruling; at the hearing for the first time he was represented by counsel. As before, the proceedings were heard by Judge Pro Tempore Malkan, who denied defendant's motion. The minute order recites 'Referred to Commissioner Malkan for hearing as judge pro tempore. Appearing counsel stipulate(s) to such hearing.' On February 17, 1972, judgment by default was entered. Defendant appeals from the judgment.

Appellant asserts that the default judgment is a nullity because he 'never' stipulated that Commissioner Malkan 'might act as a temporary judge' in any of the foregoing motion proceedings. ⁴ The record on appeal clearly shows the contrary and is conclusive on the issue. (Dawson v. Schloss, 93 Cal. 194, 205, 29 P. 31; Barlow v. Crome, 44 Cal.App.2d 356, 361, 112 P.2d 303; Delijian v. Rosenburg, 134 Cal.App. 264, 265--266, 25 P.2d 228.) To avoid such ruling, appellant has included in his opening brief a declaration that he never at any time stipulated to having Commissioner Malkan hear any of the discovery motions. In addition to the fact that we must conclude that he consented by his silence ⁵ when before each hearing he was advised by Malkan and once by Judge Deutz that in the absence of any objection it would be deemed stipulated he (Malkan) could hear the matter at hand, we cannot consider any matter first urged in appellant's brief dehors the record. (Hom v. Clark, 221 Cal.App.2d 622, 647, 35 Cal.Rptr. 11; Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 694, 262 P.2d 95; 6 Witkin, Cal. Procedure (2d ed.) § 218, pp. 4208--4209.) Nor are we impressed with appellant's concomitant argument that the notations in the minute orders referring to 'counsel' do not relate to him because he is not an attorney. Needless to say, while appearing in propria persona defendant indeed Was counsel for himself--to the same extent as any licensed attorney who represented him would have been. In light of his vigorous pursuit of his own interests during every proceeding before the trial court, we can reasonably conclude that therein he never doubted that he had then assumed the precise role of counsel.

Appellant contends that the sanction of striking his answer and counterclaim and entering his default constitutes prejudicial error because his answers to the interrogatories were adequate and sufficient and complied with the court's orders; and sets up in his opening brief the interrogatories at issue and his three sets of answers thereto--(1) initial response, (2) additional answers represented by the unsigned and unverified document and (3) 'Supplemental Answers of (sic) Interrogatories.' Although it is true that nonappealable orders such as those in discovery proceedings may be reviewed on appeal after a final judgment has been entered in the case in chief (Wooldridge v. Mounts, 199 Cal.App.2d 620, 628--629, 18 Cal.Rptr. 806), we note that at no time during the protracted discovery proceedings and before the entry of the default judgment 15 1/2 months later, did defendant challenge any of said orders on petition for extraordinary writ in this court. And while reviewing courts are less reluctant to overturn the judgment of the trial court entered on a default than after a full trial, the burden is on appellant to establish that the trial court committed error and that such error is so prejudicial as to constitute a miscarriage of justice. (Jaffe v. Albertson Co., 243 Cal.App.2d 592, 618, 53 Cal.Rptr. 25.) We have considered all of the interrogatories in question, each of defendant's various answers thereto and each order, and conclude as did the trial court that his answers are insufficient, nonresponsive and evasive, and that his failure to file reasonably adequate and sufficient answers was a wilful refusal to comply with the discovery orders. We find no error with respect to the trial court's rulings. ⁶

Appellant raises the more serious question of the applicability of the penalty provisions of section 2034, subdivision (b)(2)(iii), Code of Civil Procedure, ⁷ under the circumstances of this case. He argues that the ultimate sanction of striking his answer and counterclaim and entering his default was too severe and that a lesser penalty would have been fitting. While the purpose of sanctions under the Discovery Act is to enable the party to obtain the objects of the discovery he seeks and compliance with orders the court makes therefor, and not to provide a weapon for punishment (Welgoss v. End, 252 Cal.App.2d 982, 992, 61 Cal.Rptr. 52; Jacuzzi v. Jacuzzi Bros., Inc., 243 Cal.App.2d 1, 16, 52 Cal.Rptr. 147; Caryl Richards, Inc. v. Superior Court, 188 Cal.App.2d 300, 304, 10 Cal.Rptr. 377), and we recognize that the sanction of dismissal or rendering a judgment by default against the disobedient party ordinarily is a drastic measure, certainly there are instances in which that sanction must be imposed in justice to the prevailing party. 'The true doctrine seems to be that so long as the penalty is appropriate to the dereliction, does not exceed that which is required to protect the interests of the party entitled to but denied discovery, and is one described by the statute, its imposition is within the discretion of the trial judge.' (...