Rodriguez v. Andy Gump CA2/3 ( 2024 )

Filed 10/31/24 Rodriguez v. Andy Gump CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LEOBARDO RODRIGUEZ, B325527
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV18355)
v.
ANDY GUMP, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephanie M. Bowick, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis and Suzanne E.
Rand-Lewis for Plaintiff and Appellant.
Myers, Widders, Gibson, Jones & Feingold and Jill L.
Friedman for Defendants and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff and appellant Leobardo Rodriguez appeals from
the trial court’s judgment entered pursuant to its order issuing
terminating sanctions. Rodriguez contends the trial court erred
by finding he violated the court’s discovery orders and
impermissibly imposed terminating sanctions to punish him. We
find no abuse of discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2019, Rodriguez filed a complaint against Andy
Gump, Inc., Evelyn Abernathy, Tony Watson, and Roberto
Ramirez (together, defendants), arising from his employment
with and termination from Andy Gump, Inc. (AGI). Rodriguez
alleged causes of action for breach of contract, breach of the
covenant of good faith and fair dealing, wrongful termination in
violation of public policy, discrimination and harassment, wage-
and-hour violations, false promises, intentional infliction of
emotional distress, and whistleblower retaliation.1 Rodriguez
alleged that when he became disabled due to workplace injuries
and unsafe working conditions, defendants failed to accommodate
him, demoted him, discriminated against him, harassed him
because of his race, retaliated against him when he complained,
and ultimately terminated his employment.
In April 2020, AGI propounded form interrogatories,
requests for production of documents (RFPs), and requests for
admission (RFAs) to Rodriguez. Each defendant also propounded
a set of special interrogatories to Rodriguez.
First Motions to Compel
The discovery responses were due May 28, 2020.
Rodriguez’s counsel objected to the service of the RFAs but
1 In September 2020, Rodriguez filed the operative first
amended complaint alleging largely the same causes of action.
2
otherwise failed to object, respond, or request an extension of
time to respond to the remaining discovery. In a meet-and-confer
e-mail exchange in August 2020, defense counsel requested that
Rodriguez serve verified responses without objections within one
week to avoid a motion to compel. Rodriguez’s counsel refused to
respond, appearing to argue that all of defendants’ discovery was
improperly served.
In August 2020, AGI moved to compel responses to its form
and special interrogatories, RFPs, and RFAs. The individual
defendants moved to compel responses to their respective sets of
special interrogatories. Defendants also requested monetary
sanctions. In September 2020, Rodriguez served verified
responses to AGI’s RFAs. Rodriguez did not object or respond to
any of defendants’ other discovery requests. Rodriguez also did
not file oppositions to the motions to compel.
In January 2021, the court held an informal discovery
conference. The court denied defendants’ request for monetary
sanctions and continued the hearings on the motions to compel to
March 2021, based on Rodriguez’s counsel’s representations “that
they are working on providing responses to all of the discovery.”
The court ordered defendants to file a supplemental declaration
by February 22, 2021, updating the court on the discovery
responses received. In the supplemental declaration, defense
counsel attested that she had not received responses to
defendants’ interrogatories or AGI’s RFPs. Rodriguez also had
not filed oppositions to the motions to compel.
On March 1, 2021, the trial court held a hearing on the
unopposed motions to compel. The court granted defendants’
motions to compel responses to the form interrogatories, special
interrogatories, and RFPs. The court ordered Rodriguez to serve
3
verified responses and produce responsive documents within 21
days. The court also granted in part defendants’ request for
monetary sanctions. It found, “Plaintiff’s conduct constitutes an
abuse of the discovery process. Defendants have been denied a
full opportunity to conduct discovery in which to defend this
lawsuit and have been severely prejudiced by Plaintiff’s failure to
respond to written discovery served many months ago. The
Court also notes that Plaintiff has failed to file an opposition to
the motions to compel responses.” The court imposed a sanction
of $622.00 for each motion, to be paid within 21 days.
First Motion for Sanctions and Motions to Compel Further
Responses
On March 23, 2021, AGI moved for further sanctions on the
grounds that Rodriguez had not served verified discovery
responses or paid monetary sanctions by the court’s deadline.
AGI requested that the court strike Rodriguez’s amended
complaint, terminate and dismiss the action without prejudice,
and impose monetary sanctions. The motion was set for hearing
in August 2021.
On March 29, 2021, Rodriguez served responses to AGI’s
form interrogatories and RFPs, and all defendants’ special
interrogatories. He attached verifications to each set of
responses. Rodriguez also served defendants with a 959-page
document production.
Defendants contended Rodriguez’s March 2021 responses
were insufficient and improperly verified. The parties met and
conferred but did not resolve their dispute. AGI later asserted it
sent a meet-and-confer letter regarding the verifications, but
Rodriguez’s counsel responded only: “Your contentions are false.
4
Either agree to mediate or provide available dates in May for the
Defendant’s PMQ deposition.”
In May 2021, AGI filed a motion to compel further
responses to its form interrogatories and requests for production.
All defendants also moved to compel further responses to the
special interrogatories. Each motion requested $1,232.50 in
monetary sanctions. In their motions, defendants argued
Rodriguez’s responses were incomplete, evasive, and that his
production was a “ ‘document dump’ ” that failed to identify
specific documents responsive and relevant to the requests.
Defendants also argued that the responses were improperly
verified because “they appear to be copied and pasted from” the
verifications to Rodriguez’s responses to AGI’s RFAs served in
September 2020, thus violating the statutory requirement that
answers to interrogatories be signed by the responding party—
not the attorney—under oath. AGI argued the verifications were
“not authentic” and violated the court’s order that the responses
be verified. Defendants attached copies of the verifications to
their motions. The motions were set for hearing in late
November 2021 and early December 2021.
In August 2021, Rodriguez opposed AGI’s motion for
sanctions, arguing he had timely served full and complete
responses and timely paid the monetary sanctions. In reply, AGI
disputed Rodriguez’s claims and again argued that the discovery
responses were not properly verified because the signatures were
“cut and pasted multiple times” from Rodriguez’s September 2020
verifications to his RFA responses. Defense counsel’s supporting
declaration referred to six exhibits, including Rodriguez’s
September 2020 and March 2021 verifications. However, the
exhibits were omitted as attachments.
5
Later in August, the court held a hearing on AGI’s motion
for sanctions. The trial court questioned Rodriguez’s counsel
about whether the discovery verifications were “freshly verified”
or cut and pasted. Counsel stated, “[T]he verifications were
affixed electronically to the responses that were served by the
plaintiff. It was done so at Plaintiff’s instruction. It was done so
following his affixing a signature on a verification form that was
then sent to us electronically from which we took that electronic
signature and affixed it to the responses themselves.” The trial
court asked if Rodriguez’s counsel was indicating that Rodriguez
affixed his electronic signature to the verification; counsel
responded: “No, your honor. We affixed his signature
electronically to the responses.” The court questioned whether it
was permissible for counsel to “attach a signature for somebody
else.” The trial court ordered the parties to submit supplemental
briefs regarding the verification issue.
In September 2021, both parties filed supplemental briefs
on the verification issue. Rodriguez argued his verifications
“were signed with an electronic signature” in compliance with the
Los Angeles County Superior Court’s General Order Re:
Mandatory Electronic Filing (General Order) and California
Rules of Court, rule 2.257.2 In a supporting declaration,
2 The General Order requires all electronically filed
documents to comply with California Rules of Court, rule 2.257.
(General Order, § 11.) California Rules of Court, rule 2.257
defines an “electronic signature” as an “electronic sound, symbol,
or process attached to or logically associated with an electronic
record and executed or adopted by a person with the intent to
sign a document or record created, generated, sent,
communicated, received, or stored by electronic means.” (Id.,
6
Rodriguez’s counsel attached what was identified as the
verifications to Rodriguez’s March 2021 discovery responses. In
AGI’s supplemental brief, it contended neither the General Order
nor California Rules of Court, rule 2.257 applied to documents
served and not filed. It again argued that the verifications
violated the Code of Civil Procedure. AGI further noted the
signatures on the verifications attached to Rodriguez’s
supplemental brief “do not match” the signatures on the
verifications originally served with Rodriguez’s March 2021
discovery responses. Noting AGI’s earlier omission of the six
exhibits—including the verifications—from the reply declaration
in support of its sanctions motion, the court ordered defendants
to refile the reply with the exhibits attached.
In November 2021, Rodriguez filed a combined opposition
to defendants’ motions to compel further responses. He argued
his March 2021 responses were timely and complete, he had
produced all responsive documents in his possession, and his
verifications were valid and proper. In a supporting declaration,
his counsel attested that in August 2021, Rodriguez paid in full
the monetary sanctions imposed in March 2021.
In December 2021, the court held a hearing on the motions
to compel and the motion for sanctions. The court found that
because AGI had failed to refile the reply brief in support of its
motion for sanctions with the exhibits, the court could not
consider the exhibits unless the failure to file was due to the
rule 2.257(a)(1).) Electronically filed documents are deemed to be
signed if the declarant signs the document using an electronic
signature or physically signs a printed form that is electronically
filed. (Id., rule 2.257(b)(1), (2).)
7
court clerk’s error. The court continued the hearing on all
motions to January 2022.
January 25, 2022 Order Denying First Motion for Sanctions
The continued hearing took place on January 25, 2022.
The court denied AGI’s March 2021 motion for sanctions and took
defendants’ May 2021 motions to compel further responses to
discovery under submission.
AGI’s motion for sanctions was based on Rodriguez’s
alleged failure to serve any discovery responses by the court’s
deadline and the failure to provide proper verifications.
However, the court agreed with Rodriguez that AGI had
incorrectly calculated the deadline for the responses. When
calculated from the date of a corrected minute order, and
allowing for extensions for notice of the ruling served by mail and
holidays, Rodriguez had timely served responses on the last
possible day. Further, as to the verifications, the court noted AGI
conceded during the hearing that, due to its own error, it had not
refiled its reply in support of the motion for sanctions with the
previously omitted exhibits. The court therefore found the
exhibits “were not properly and timely filed” and declined to
consider them in deciding the motion for sanctions. As a result,
the court rejected AGI’s argument that Rodriguez failed to
properly verify his responses, finding “solely for the purposes of
the instant Motion” that Rodriguez complied with the court’s
March 2021 order to serve verified responses within 21 days.
The court further concluded that although Rodriguez failed
to pay monetary sanctions within 21 days of the March 2021
order, neither terminating sanctions nor additional monetary
sanctions were warranted for the delay in payment. Despite
Rodriguez’s late payment, AGI’s error in calculating the discovery
8
deadline and its failure to support its arguments regarding the
verifications by attaching the relevant documents meant that
AGI had not demonstrated “any additional misuse of the
discovery process.”
January 28, 2022 Order Granting Motions to Compel
Further Responses and Awarding Monetary Sanctions
Three days later, on January 28, 2022, the court issued a
ruling on defendants’ May 2021 motions to compel further
responses to discovery. At issue were the sufficiency of
Rodriguez’s responses and, once again, the validity of his
discovery verifications, which defendants had attached to their
motions to compel. The court granted the motions.
With respect to the motions to compel further responses to
defendants’ special interrogatories, the court ruled: “Defendant’s
Motion to Compel Further Answers to Special Interrogatories is
GRANTED in its entirety as to Andy Gump’s Special
Interrogatories, Evelyn Abernathy’s Special Interrogatories, Tony
Watson’s Interrogatories (Nos. 3, 6, 9, 12, 15, 18, 21, 24, 27 and
30) and Roberto Ramirez’s Interrogatories (Nos. 3, 6, 9, 12, 15,
18, 21, 24, 27 and 30).”3 It instructed Rodriguez to “identify the
specific documents that are responsive to each request by bates
numbers/bates range or list each document with sufficient
specificity and detail so that the specific responsive documents
can be readily identified as to the specific request involved.
3 In a separate party-prepared order entered after the
hearing, the trial court ordered Rodriguez to “provide properly
verified answers/further answers . . . to the following Special
Interrogatories: 3, 6, 9, 12, 15, 18, 21, 24, 27 and 30 (For All
Defendants).”
9
Plaintiff cannot merely refer to a ‘file’ as a whole or a generalized
description such as ‘other policies and procedures.’ ”
The court also granted AGI’s motion to compel further
responses to 13 form interrogatories. For 11 of them, the court
again required that Rodriguez “provide the bates-stamp numbers
to all of the documents referenced or list each document with
sufficient specificity and detail so that it can be readily identified
as to the specific request involved.” Similarly, the court ordered
Rodriguez to further respond to all 15 RFPs that were the subject
of AGI’s motion to compel and to “identify the specific documents
that are responsive to each request as well as each category of
documents by bates numbers/bates range so that the specific
responsive documents can be readily identified as to the specific
request involved.”
With respect to all discovery responses, the trial court
found “that the responses served were not properly verified. Cut
and paste signatures by counsel are improper. The Court agrees
with the arguments asserted by Defendant.”
The court also granted defendants’ request for monetary
sanctions, finding Rodriguez had failed to properly respond to
valid discovery requests. It concluded defendants had afforded
Rodriguez “extensive time and opportunity to properly respond to
the discovery requests and provide proper verifications after meet
and confer efforts were conducted,” and that Rodriguez had “not
established substantial justification for his conduct.” The court
imposed sanctions of $1,395.00 for each motion to compel,
payable to defense counsel within 30 days.
In February 2022, Rodriguez served further responses to
defendants’ discovery. As relevant here, in his further responses
to requests asking Rodriguez to identify specific documents
10
supporting his claims—such as documents reflecting his
demotion, his harassment claims, meal and rest break violations,
and AGI’s failure to accommodate his disability—Rodriguez
stated that he “relie[d] upon his operative Complaint, and
document production,” followed by a bates range of “PLTF0001-
PLTF0100, PLTF0105-PLTF0959,” “PLTF0001-PLTF0100,
PLTF0105-PLTF0874,” or “PLTF0001-PLTF0959.” Verifications
were attached to each set of responses.
September 13, 2022 Order Granting Terminating Sanctions
In March 2022, AGI again moved for terminating and
monetary sanctions, alleging Rodriguez “repeatedly failed to
comply” with court orders to serve adequate, verified responses to
discovery and to pay the monetary sanctions the court had
imposed. The same month, defendants filed a third set of
motions to compel further responses to their discovery.
In August 2022, Rodriguez paid the monetary sanctions the
court had imposed in January and ordered to be paid within 30
days.
In September 2022, after a hearing, the court issued
terminating sanctions based on Rodriguez’s noncompliance with
the January 28, 2022 order and his failure to timely pay
monetary sanctions. Specifically, the court found Rodriguez’s
responses to two of AGI’s special interrogatories, and the 10
special interrogatories at issue in each individual defendant’s
motion, violated the order. Rodriguez’s “references to bates-
stamps” in these further responses were “too broad and do not
identify the responsive documents with sufficient specificity and
detail as ordered by the Court . . . .” The court noted the
responses cited over 900 consecutive pages of documents and
failed to “provide any specific document descriptions, categories,
11
or description of the types of documents.” Further, 23 of AGI’s
special interrogatories “were not answered at all in violation of
the Court’s orders.”
The court similarly found Rodriguez’s further responses to
five of AGI’s form interrogatories also cited Rodriguez’s entire
959-page document production and failed to identify each
document with sufficient specificity as ordered. The court noted
Rodriguez’s responses to two other interrogatories were
incomplete because they did not fully answer each interrogatory’s
subparts. Similarly, the court concluded that Rodriguez’s further
responses to 11 of 15 RFPs failed to identify documents with
sufficient specificity as required by the court’s January 28, 2022,
order.
Finally, the court found Rodriguez failed to properly verify
his responses, in violation of the court’s order. Despite the
January 28, 2022 order finding his previous cut-and-pasted
verifications improper, Rodriguez’s February 2022 verification
signatures appeared to be cut and pasted. The court explained:
“First, all but one of the signatures, appear to be identical, with
no variation of the letters or script. Second, while the signatures
appear to be hand-signed, it is clear that the dates on each,
‘2/17/22,’ were applied electronically. Thus, at a minimum, the
signature and dates were not added to the verification page in the
same manner, further suggesting that the signatures were cut
and pasted, copied, and/or applied electronically, and are not
original wet signatures.”
Although Rodriguez disputed AGI’s contention that the
signatures were cut and pasted, the court noted Rodriguez had
not filed a declaration “attesting to the manner in which the
signatures were executed or any other basis to conclude that the
12
verification signatures were not cut and pasted and/or
photocopied.” Further, he provided “no explanation as to why the
dates were electronically applied to signatures that appear
handwritten. [¶] At the hearing, [Rodriguez] failed to give a clear
explanation regarding these discrepancies and conceded that
there was an electronic/scanning aspect to their execution.”
Finally, the court noted Rodriguez paid the January 2022
sanctions seven months late.
The court determined Rodriguez had willfully disobeyed the
court’s orders, and less severe sanctions would not produce
substantial compliance with discovery rules in the future. The
court reasoned:
“The Court sees a pattern of abuse exhibited by Plaintiff in
reviewing this history and current status of this matter. Plaintiff
continues to argue that no further responses or clarification is
needed, and all the responses are proper. At the hearing,
Plaintiff improperly claims that further responses are privileged
attorney work-product, and his counsel further argu[es] that it is
not ‘our job to spoon feed’ to the Defendants Plaintiff’s theory of
the case. The Court finds, however, that Plaintiff has
deliberately disregarded the Court’s orders, unfairly deterring
Defendants’ ability to fully investigate, conduct additional
discovery and depositions, and adequately prepare for trial
currently set for November 29, 2022. [¶] The Court has given
Plaintiff sufficient opportunity to be heard and comply with the
multiple orders and has taken lesser steps to compel full
compliance, to no avail. The Court has attempted to take an
incremental approach, including conducting an Informal
Discovery Conference. However, the previous chances to comply,
warnings, and lesser sanctions failed to curb the abuse.
13
Accordingly, this Court has no reasonable option but to impose
terminating sanctions in light of Plaintiff’s persistent pattern and
continued misuse of the discovery process and opposition to
providing clear, meaningful, and understandable responses
regarding his claims and contentions against the Defendants.
[¶] . . . It is clear to this Court, especially by way of the oral
arguments by Plaintiff’s counsel at the hearing, that he is not
willing to give further responses, as it is a ‘waste of his client’s
time and money,’ Defendants should just ‘move on’ and instead,
‘pay to settle the case,’ that any less severe sanction will clearly
not now yield compliance or be fair to Defendants under the
circumstances. [Citation.] Finally, time has run out in light of
the amount of discovery outstanding and the fast approaching
trial date. . . . The Court is not required to allow Plaintiff to
continue his stalling tactics indefinitely.”
The court granted the request for terminating sanctions,
struck Rodriguez’s amended complaint, and dismissed the action
without prejudice. The court entered judgment in favor of
defendants and against Rodriguez.
Rodriguez timely appealed.
DISCUSSION
I. Applicable Legal Principles and Standard of Review
“California discovery law authorizes a range of penalties for
conduct amounting to ‘misuse of the discovery process.’ ” (Doppes
v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991, quoting
Code Civ. Proc., § 2023.030.) Misuse of the discovery process
includes failing to respond to discovery or disobeying a court
order to provide discovery. (Code Civ. Proc., § 2023.010,
subds. (d), (f), (g).) “The discovery statutes evince an incremental
approach to discovery sanctions, starting with monetary
14
sanctions and ending with the ultimate sanction of termination.”
(Doppes, at p. 992; see Code Civ. Proc., §§ 2030.290, subd. (c),
2030.300, subds. (d), (e), 2031.300, subd. (c), 2031.310, subds. (h)
[interrogatories], (i) [RFPs].)
Code of Civil Procedure section 2023.030, subdivision (d)
allows courts to “impose a terminating sanction by . . . [¶] . . . [¶]
. . . dismissing the action, or any part of the action,” of “any party
engaging in the misuse of the discovery process.” (Id.,
§ 2023.030, subds. (d)(1), (3).) Terminating sanctions are
generally appropriate only where a party disobeys a court order,
causing prejudice to the opposing party. (Moofly Productions,
LLC v. Favila (2020) 46 Cal.App.5th 1, 11 (Moofly); Los
Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390
(Gomez).) “A decision to order terminating sanctions should not
be made lightly. But where a violation is willful, preceded by a
history of abuse, and the evidence shows that less severe
sanctions would not produce compliance with the discovery rules,
the trial court is justified in imposing the ultimate sanction.”
(Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262,
279–280.)
“ ‘ “The power to impose discovery sanctions is a broad
discretion subject to reversal only for arbitrary, capricious, or
whimsical action.” ’ [Citation.] The trial court may order a
terminating sanction for discovery abuse ‘after considering the
totality of the circumstances: [the] conduct of the party to
determine if the actions were willful; the detriment to the
propounding party; and the number of formal and informal
attempts to obtain the discovery.’ [Citation.]” (Gomez, supra, 223
Cal.App.4th at p. 390.) “ ‘[T]he question before this court is not
whether the trial court should have imposed a lesser sanction;
15
rather, the question is whether the trial court abused its
discretion by imposing the sanction it chose. [Citation.]’ ”
(Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611,
1620 (Collisson & Kaplan).)
II. The Terminating Sanctions Were Not an Abuse of
Discretion
Rodriguez contends the trial court abused its discretion in
ordering terminating sanctions because he did not disobey the
January 28, 2022 order and the trial court imposed the sanctions
to punish him. The record does not support these contentions.
The record reflects Rodriguez’s discovery abuse predated
the January 28, 2022 order and continued after it was issued.
Rodriguez initially failed to respond to the majority of
defendants’ discovery requests for 10 months. Neither
defendants’ pending, unopposed motions to compel, nor an
informal discovery conference, prompted him to comply with his
discovery obligations. Instead, Rodriguez produced initial
responses only after the court compelled him to do so and
assessed monetary sanctions. Even then, Rodriguez’s responses
to numerous requests were improper and incomplete. Rodriguez
did not provide further responses until the court again compelled
him to do so and imposed further sanctions. Several of these
responses remained improper and violated the court’s specific
orders. Rodriguez also continued to verify his further responses
in a manner the court expressly found improper.
Further, Rodriguez did not pay the monetary sanctions the
court imposed in March 2021 or January 2022 until after motions
to compel further responses were on calendar. There was ample
basis for the court to reasonably conclude that Rodriguez’s
16
conduct was an abuse of the discovery process that warranted
terminating sanctions.
We turn to Rodriguez’s specific contentions.
A. The trial court properly found Rodriguez
violated the January 28, 2022 order by failing to
identify documents with specificity
In the January 28, 2022 order, the trial court instructed
Rodriguez to provide further responses identifying responsive
documents with sufficient specificity—either with bates numbers
or descriptions, or some combination of the two—so that the
documents could “be readily identified as to the specific request
involved.” (See Code Civ. Proc., §§ 2030.230, 2030.280, subd. (a);
Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377,
387 [trial court ordered plaintiff to “identify which documents
were responsive to” discovery requests; failure to comply
warranted sanction], disapproved of on other grounds in Brown v.
USA Taekwondo (2021) 11 Cal.5th 204.)
Several of Rodriguez’s further responses did not make
documents responsive to specific requests readily identifiable.
The interrogatories and RFPs at issue requested documents
supporting discrete claims in Rodriguez’s complaint, including his
reports about unsafe workplace conditions, his requests for
accommodations, his employer’s alleged false representations,
and communications with the named individual defendants. In
repeated boilerplate responses, Rodriguez listed pages of his
document production ranging in total volume from 869 pages to
959 pages—the entirety of the production—without any further
detail. By responding to each request by referencing all or almost
all of the document production, Rodriguez essentially parroted
his initial responses that the court found too broad for referring
17
only to generalized descriptions of documents or the “file” as a
whole.
Rodriguez does not challenge the trial court’s initial ruling
that his nonspecific responses were deficient, and he makes no
attempt to explain how listing a range of documents that
encompassed all or almost all of his document production in his
further responses remedied his initial noncompliance. (Liberty
Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163
Cal.App.4th 1093, 1102, 1103 (Liberty Mutual) [responses that
cited “entire compendium” of a file as supporting documents
“submitted no meaningful information” and were evasive].) We
therefore disagree that he acted with substantial justification
because he fully complied with the court’s orders. It was
reasonable for the court to conclude that Rodriguez’s further
responses did not comply with its order.
Rodriguez contends the trial court’s ruling erroneously
concluded he violated the court’s January 28, 2022 order by
failing to provide supplemental responses to 23 special
interrogatories propounded by AGI. He argues the trial court
“ignore[d]” the order after hearing, which, unlike the January 28,
2022 minute order, compelled further responses to only 10 of
AGI’s special interrogatories. We note that the trial court
appeared to reject the argument that the party-prepared order
reflected the entirety of the court’s ruling, rather than the
detailed minute order. However, even assuming the party-
prepared order signed and filed after the hearing was intended to
supplant the court’s minute order issued the same day, Rodriguez
still failed to comply with that order by providing insufficient
responses to two of AGI’s special interrogatories and 10 special
18
interrogatories for each individual defendant specified in the
order, for the reasons explained above.
Rodriguez also failed to provide sufficient further responses
to seven form interrogatories. Of these, five form interrogatories,
or their subparts, requested that he identify responsive
documents supporting his damages claims, documents supporting
any unqualified requests for admission, and documents reflecting
any communications between Rodriguez and defendants about
his disability. Rodriguez’s further responses to these form
interrogatories cited the same ranges of bates-stamp numbers as
his responses to the special interrogatories and RFPs. These
responses were thus equally deficient.
Rodriguez contends the trial court erroneously found his
further responses to two form interrogatories were incomplete
because he answered all subparts as the court had ordered. Yet,
the record provides ample basis for the court’s decision to impose
terminating sanctions, irrespective of his compliance as to two of
several discovery requests. The discovery requests to which
Rodriguez failed to adequately respond were significant.
Rodriguez’s causes of actions were based on allegations that
defendants failed to accommodate his disability, demoted him,
denied him meal and rest breaks, exposed him to unsafe working
conditions, harassed him due to his race and disability, and
retaliated against him. The documents defendants requested
were specifically addressed to these claims. For example, the
requests asked Rodriguez to identify documents supporting his
contentions that defendants failed to accommodate his disability;
that he was demoted; that AGI denied him meal and rest breaks;
that he reported workplace injuries and unsafe working
conditions; and that he was harassed until he quit. Even if the
19
trial court was mistaken as to his further responses to two form
interrogatories, or in concluding that he failed to answer other
special interrogatories, we could not find an abuse of discretion in
the trial court’s ultimate order given Rodriguez’s failure to
comply with the remainder of the January 28, 2022 order.
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801 [“ ‘No form
of civil trial error justifies reversal . . ., where in light of the
entire record, there was no actual prejudice to the appealing
party’ ”].)
Rodriguez also contends that his reference to over 800 or
900 pages in response to five RFPs was proper because the scope
of the requests was very broad. With the possible exception of
the two requests that asked Rodriguez to produce all documents
identified in the responses to interrogatories, the trial court could
reasonably reject Rodriguez’s rationalization that a response to
individual requests for documents supporting his claims for
general damages, special damages, and punitive damages could
properly be answered by simply referring to all 800 or 900
documents produced. Further, the court could reasonably
conclude that such responses reflected a willful refusal to comply
with the court’s prior order.
B. The trial court did not err in finding Rodriguez
disobeyed its order regarding verifications
At the August 2021 hearing on defendants’ motion for
sanctions, Rodriguez’s counsel explained that counsel “affixed”
Rodriguez’s electronic signature to the verifications. As noted
above, on January 28, 2022, the court rejected this process as
improper verification. The court shared defendants’ concern that
the cut-and-paste method counsel had employed failed to
establish that Rodriguez knowingly verified the discovery
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responses in this case. Although the court indicated to counsel
that it would not accept this practice, it found counsel continued
to cut and paste Rodriguez’s signature in the verifications to the
February 2022 discovery responses. Further, counsel did not file
a declaration or otherwise confirm that Rodriguez was in fact
personally reviewing and verifying each discovery response. Nor
did counsel attest that Rodriguez had signed each verification
with a wet-ink signature.
The Code of Civil Procedure requires the party responding
to discovery to sign responses under oath unless the response
contains only objections. (Code Civ. Proc., §§ 2030.250, subd. (a)
[interrogatories]; 2031.250, subd. (a) [RFPs]; Melendrez v.
Superior Court (2013) 215 Cal.App.4th 1343, 1351 [“An attorney
cannot verify a response on behalf of an individual party”].) On
appeal, Rodriguez does not contend that cutting and pasting a
client’s electronic signature was consistent with the statute.
Rather, he argues insufficient evidence supported the trial court’s
finding that all but one of the signatures on his February 2022
verifications were cut and pasted in violation of the January 28,
2022 order. Rodriguez’s contentions fail to establish an abuse of
discretion.
Rodriguez first contends the trial court erroneously relied
on defense counsel’s attestation in a declaration that the
signatures “ ‘appeared to have been cut and pasted.’ ” However,
the trial court did not rely on defense counsel’s representations.
Instead, the court based its conclusion on its observations that all
but one of the signatures were identical and the date was
electronically applied. It was within the court’s factfinding
authority to make its own determination regarding the
genuineness of handwriting based on the evidence presented.
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(Evid. Code, § 1417; see, e.g., Estate of Nielson (1980) 105
Cal.App.3d 796, 801 [handwriting on a will speaks for itself, and
trial court can independently determine genuineness of testator’s
handwriting].)
Rodriguez next argues the trial court’s determination that
his signature and the date were not added to the verification
pages “ ‘in the same manner’ ” was irrelevant to whether he
signed the verifications. However, the court did not base its
finding on a “requirement” that signatures and dates must be
added to the verification page “ ‘in the same manner’ ” to be valid.
Rather, the court reasoned that the fact that the signatures were
handwritten while the dates were typewritten supported its
conclusion that all but one of the signatures “were cut and
pasted, copied, and/or applied electronically, and are not original
wet signatures.” The trial court was entitled to draw such
reasonable inferences from the facts and evidence before it.
(Healy v. Yellow Cab Co. of California (1939) 32 Cal.App.2d 479,
481 [“It is the province of the trial court to resolve questions of
fact and draw reasonable inferences from facts established”].)
We find no abuse of discretion in the trial court’s
determination that Rodriguez’s February 2022 verifications failed
to comply with the court’s January 28, 2022 order.
C. The trial court’s imposition of terminating
sanctions was not punitive
Rodriguez argues the trial court abused its discretion by
imposing terminating sanctions to punish him. The record does
not support his argument.
Discovery sanctions are not intended “ ‘ “ ‘to provide a
weapon for punishment, forfeiture and the avoidance of a trial on
the merits,’ ” . . . but to prevent abuse of the discovery process
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and correct the problem presented . . . .’ Consistent with this
statement of purpose the appellate courts have held ‘[t]he penalty
should be appropriate to the dereliction, and should not exceed
that which is required to protect the interests of the party
entitled to but denied discovery.’ ” (Parker v. Wolters Kluwer
United States, Inc. (2007) 149 Cal.App.4th 285, 301, fns. omitted.)
Here, the trial court’s imposition of terminating sanctions
was a proportional remedy to Rodriguez’s repeated abuse of the
discovery process. Rodriguez initially failed to respond to
discovery at all. He subsequently ignored his discovery
obligations regardless of the mechanisms defendants and the
court employed to obtain his meaningful participation in the
process. Defendants twice moved to compel responses from
Rodriguez regarding the same sets of discovery. The trial court
held an informal discovery conference and multiple hearings on
defendants’ motions. The court outlined in detail the deficiencies
in Rodriguez’s responses and verifications. It also twice imposed
monetary sanctions and denied defendants’ initial request for
terminating sanctions. In light of Rodriguez’s repeated refusals
to sufficiently respond to discovery despite the court’s attempts to
obtain compliance, we cannot find that the imposition of
terminating sanctions was excessive or merely punitive. (Liberty
Mutual, supra, 163 Cal.App.4th at pp. 1105, 1106 [trial court’s
imposition of terminating sanctions not punitive “when prior
efforts yielded no results”]; Collisson & Kaplan, supra, 21
Cal.App.4th at p. 1618 [trial court did not abuse its discretion by
striking the answer where the “[d]efendants chose to ignore the
many attempts, both formal and informal, made by plaintiff to
secure fair responses from them”].)
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Rodriguez contends the trial court’s decision to impose
terminating sanctions was punitive because the court previously
held, in its January 25, 2022 order denying the first motion for
terminating sanctions, that he had not engaged in discovery
abuse. However, Rodriguez’s argument ignores the context of the
court’s prior order. In its first motion, AGI contended
terminating sanctions were warranted because Rodriguez
violated the court’s March 2021 order by failing to timely serve
his discovery responses and by failing to properly verify the
responses he eventually served. After finding AGI miscalculated
the discovery deadline, and noting that AGI did not submit
Rodriguez’s verifications as exhibits for the court to address the
verification issue, the court found AGI failed to show Rodriguez
had engaged “in any additional misuse of the discovery process.”
Put differently, the trial court’s January 25, 2022 order
focused on AGI’s failure to sufficiently support its limited
assertions that Rodriguez filed untimely responses and failed to
properly verify them. The court’s ruling did not exonerate
Rodriguez but instead determined that AGI had not established
its claims of additional discovery abuse warranting further
sanctions. The court’s first order denying terminating sanctions
was thus not at odds with the court’s later finding that
Rodriguez’s conduct during litigation evinced a “history” of
discovery abuse warranting terminating sanctions. (Andrus v.
Estrada (1995) 39 Cal.App.4th 1030, 1042 [court’s grant of
sanctions was proper because it was “based upon appellants’
entire pattern of conduct over the course of the litigation”].)
Rodriguez also argues the trial court’s references to his
counsel’s arguments at the hearing indicate that the terminating
sanctions were motivated by the court’s “displeasure with the
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arguments of Appellant’s counsel,” and were therefore intended
as punishment. We disagree. The trial court permissibly
referred to Rodriguez’s counsel’s statements at the hearing to
support its conclusions. The court noted that counsel’s failure to
clearly explain how the verifications were executed, and his
concession that the signatures were electronically affixed by
counsel, supported the court’s determination that the
verifications of Rodriguez’s further responses were improper.
Similarly, in support of its findings that Rodriguez had engaged
in a pattern of discovery abuse and that lesser sanctions would be
ineffective, the court noted that counsel made improper claims of
privilege, indicated Rodriguez would not “do Defendants’ work for
them” by providing further responses, and opined that
defendants should “ ‘pay to settle the case.’ ” The court could
reasonably consider these assertions in assessing the likely
effectiveness of lesser sanctions.
Rodriguez additionally argues the sanctions were punitive
because nothing in the record established any prejudice to
defendants. Not so. “ ‘ “An important aspect of legitimate
discovery from a defendant’s point of view is the ascertainment,
in advance of trial, of the specific components of plaintiff’s case so
that appropriate preparations can be made to meet them.” ’
[Citation.] A party cannot intelligently defend itself against
affirmative defenses or damage claims when the other side’s
discovery responses consist of legal double-talk and provide no
useful information.” (Liberty Mutual, supra, 163 Cal.App.4th at
p. 1105.)
Defendants filed three motions to compel over two years to
ascertain the specific bases of Rodriguez’s claims. Despite
numerous opportunities to comply, Rodriguez failed to serve
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properly verified responses sufficiently identifying the evidence
he claimed supported his allegations. As a result, more than two-
and-a-half years after the action commenced and only months
before the trial date, defendants had been unable to obtain
adequate, code-compliant discovery responses concerning
allegations at the core of Rodriguez’s complaint. “Prejudice is
inherent in such tactics.” (Liberty Mutual, supra, 163
Cal.App.4th at p. 1105 [defendant’s failure to “provide an
intelligible factual basis for their defenses and counterclaims”
caused prejudice].)
Finally, we reject Rodriguez’s contention that the trial
court placed “undue emphasis” on his delays in paying court-
ordered monetary sanctions, reflecting its punitive intent. It was
permissible for the court to conclude that Rodriguez “repeatedly
violated the Court’s orders” by both failing to serve adequate
discovery responses and by failing to timely pay monetary
sanctions. (Williams v. Travelers Ins. Co. (1975) 49 Cal.App.3d
805, 810 [plaintiff’s failure to pay attorney fees imposed as
discovery sanctions was one example of his failure to comply with
the trial court’s orders].) The court also properly cited
Rodriguez’s failure to timely pay monetary sanctions as support
for its finding that lesser sanctions would not result in future
compliance. (Moofly, supra, 46 Cal.App.5th at p. 12 [plaintiff’s
failure to pay monetary sanctions supported finding that
alternative sanctions had no effect on discovery abuse].)
Rodriguez has failed to show any abuse of discretion.
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DISPOSITION
The trial court’s judgment is affirmed. Respondents to
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
BERSHON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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