Northwest Windpower, Llc v. Manuel Larosa ( 2014 )


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  •      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    MANUEL LA ROSA, DDS, an
    individual,                                    No. 70637-3-
    Respondent,             DIVISION ONE                       r:°,         a- o
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    UNPUBLISHED OPINION
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    NORTHWEST WIND POWER, LLC,
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    a Washington limited liability company,                                                vl        ~,"y'S>
    and TED THOMAS, individually and as                                                    o
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    to his marital community,
    Appellants.              FILED: September 29, 2014
    Trickey, J. — Discovery sanctions should be balanced against "the nature of the
    discovery violation and the surrounding circumstances" of the case. Rivers v. Wash-
    State Conf. of Mason Contractors. 
    145 Wash. 2d 674
    , 695, 
    41 P.3d 1175
    (2002). Here,
    while the trial court found that the defendants willfully violated discovery orders and
    substantially prejudiced the opposing party and considered lesser sanctions, the limited
    findings on the issues of prejudice and lesser sanctions do not sufficiently explain the
    court's reasoning for imposing a default judgment. Moreover, the evidence in the record
    does not support the determination that Dr. Manuel La Rosa was substantially
    prejudiced. The record is insufficient to justify the harsh sanction. We reverse and
    remand.
    FACTS
    Dr. Manuel La Rosa filed a complaint against Northwest Wind Power, LLC, and
    its chief executive officer, Ted Thomas (collectively, Northwest), in May 2012.1 La Rosa
    1 Clerk's Papers (CP) at 1-5, 176.
    No. 70637-3-1 / 2
    claimed that he entered into a contract with Northwest to purchase and install a wind
    turbine on his Cle Elum property in 2010.2 La Rosa paid approximately $22,500 to
    install the system. He alleged that the wind turbine was defective because it produced
    only "nominal" amounts of electricity.3 La Rosa asserted causes of action for breach of
    contract, breach of express and implied warranties, violation of the Consumer
    Protection Act (CPA), chapter 19.86 RCW, and both intentional and negligent
    misrepresentation.4
    Northwest answered the complaint and denied that the wind turbine is defective.5
    In November 2012, La Rosa served Northwest with interrogatories and requests for
    production.6 Although initially represented by counsel, Northwest was unrepresented
    when La Rosa propounded discovery requests and did not respond.7
    In January 2013, La Rosa filed a motion to compel discovery.8 On February 15,
    2013, the trial court granted the motion.9 The court ordered Northwest to provide "full
    and complete answers" within five business days following entry ofthe court's order and
    imposed $250 in sanctions.10
    A couple of weeks after the court granted the motion to compel, attorney
    Matthew King filed a notice of appearance on behalf of Northwest.11 La Rosa's counsel
    2 CP   at   2.
    3 CP   at   3.
    4 CP   at   3-4.
    5 CP   at   7.
    6 CP   at   11.
    7CPat10, 12,95.
    8 CP at 11-12.
    9 CP at 27-28.
    10 CP at 28.
    11 CP at 31, 36.
    No. 70637-3-1 / 3
    sent King a copy of the order compelling discovery.12 About a month later, on April 4
    and 5, King sent written responses to La Rosa's interrogatories, but did not provide any
    documents responsive to his requests for production.13 King explained that he had not
    yet received any documents from his clients.14
    On April 9, a few days after receiving the interrogatory responses, La Rosa filed
    a second motion to compel.15 La Rosa requested sanctions of $2,795.49, the amount of
    expenses incurred in connection with compelling discovery.16 In response, Northwest
    explained that documents had not yet been provided to counsel because of work
    schedules and extensive travel, and assured the court that responses would be
    forthcoming within two weeks.17 Northwest argued that La Rosa had not identified any
    specific prejudice caused by the delay in light of the fact that no depositions had been
    scheduled and trial was "many months away" and urged the court not to impose
    sanctions.18
    The court granted the motion and entered a second order compelling discovery
    on April 17.19 The court found that (1) Northwest "willfully or deliberately" violated
    discovery rules and the court's February 15 order, (2) La Rosa had been "substantially
    prejudiced" in his ability to prepare for trial, and (3) the court considered lesser
    sanctions and determined that no lesser sanction would suffice.20 The court ordered
    Northwest to provide non-privileged documents responsive to the requests for
    12 CP at 36.
    13 CP at 37.
    14 CP at 85.
    15 CP at 30-34.
    16 CP at 30.
    17 CP at 91-92, 95.
    18 CP at 93, 95.
    19 CP at 105.
    20 CP at 106.
    No. 70637-3-1/4
    production within 10 business days of the order. The court also ordered Northwest to
    pay the previously-ordered sanctions in addition to new sanctions of $2,795.49.21
    Finally, the court ordered that "if Defendants do not comply with all of the terms of this
    order, Defendants' defenses and affirmative defenses shall be suspended automatically
    without further order of the court.       In such event, reinstatement of defenses and
    affirmative defenses, if any, may be had only by subsequent court order and full
    payment of the judgment amount."22
    On June 21, La Rosa filed a motion for entry of default judgment as a discovery
    sanction.23 La Rosa stated that in response to the second order compelling discovery,
    Northwest produced only 18 pages of documents, a "mere fraction of responsive
    documents," and had not paid any of the sanctions imposed.24                La Rosa did not
    describe the documents provided by Northwest, but stated that none of the documents
    produced related to (1) defenses or affirmative defenses, (2) customers from the past
    five years, (3) claims or complaints by other wind turbine purchasers, (4) advertising
    materials, (5) correspondence, apart from invoices, concerning the subject matter of the
    lawsuit, (6) correspondence between the parties, and (7) correspondence with any
    manufacturer or contractor.25
    La Rosa argued that he had been substantially prejudiced by Northwest's
    noncompliance because the discovery cutoff date was approaching on September 3,
    21 CP   at   107.
    22 CP   at   107.
    23 CP   at   109.
    24 CP   at   112.
    25 CP at 112. And although he had not complained of these deficiencies in his second motion to
    compel, La Rosa also asserted that one interrogatory question remained unanswered, the
    defendants had not provided separate interrogatory answers, and had recently failed to submit a
    witness list. CP at 112, 119. In response to the motion for default, Northwest confirmed that it
    intended to call only the parties as witnesses. CP at 218.
    No. 70637-3-1 / 5
    2013, approximately two months and a half months away.26 Moreover, he argued that
    the noncompliance with the February and April orders compelling discovery
    demonstrated that any sanction lesser than default judgment would not suffice.27 La
    Rosa sought damages of $47,522.00, comprised of $22,522.00, the amount he paid for
    the wind turbine, plus $25,000.00 in damages under the CPA based on Northwest's
    misrepresentations.28
    Northwest admitted the outstanding sanctions had not been paid due to "financial
    inability," but asserted that default was not warranted because it had produced all
    responsive documents within its "care, custody, and control."29
    The court entered a default judgment for the principal amount requested,
    $47,522.00, plus prejudgment interest of $7,670.95.30 The trial court's order includes
    findings, drafted by plaintiffs counsel, stating that Northwest "willfully or deliberately"
    violated discovery rules and the court's February 2012 and April 2012 discovery
    orders.31       The findings state that La Rosa was "substantially prejudiced" because
    Northwest failed to provide documents that are "responsive to Plaintiff's basic
    contention interrogatories and requests for production."32 The order further states that
    the court "considered whether a lesser sanction would suffice to meet the purposes of
    discovery sanctions and has determined that lesser sanctions would not suffice."33 In
    addition, the court interlineated the following finding:
    26 CP   at   114.
    27 CP   at   114.
    28 CP   at   114.
    29 CP   at   218-19.
    30 CP   at   236.
    31 CP   at   237.
    32 CP   at   237.
    33 CP   at   237.
    No. 70637-3-1 / 6
    The court is convinced that Defendants' withholding of discovery is
    intentional and for the purpose of frustrating Plaintiff's attempt to seek
    redress for his claimed damages and that Defendants' conduct in
    discovery is materially damaging Plaintiff's claim and effort to resolve his
    claims in court in conformance with court rules.[34]
    The court later entered an amended judgment, which included additional
    amounts incurred by La Rosa: $24,495.50 in attorney fees and $782.48 in costs.35
    Northwest appeals.
    ANALYSIS
    Northwest contends that imposition of default judgment as a discovery sanction
    was overly harsh and unwarranted. According to Northwest, this case involves neither
    egregious noncompliance with discovery rules and orders nor substantial prejudice to
    the opposing party's case. Therefore, the sanction was disproportionate in view of the
    conduct and the harm.
    The trial court entered a default judgment against Northwest under the authority
    of CR 37. CR 37 sets forth rules regarding sanctions when a party fails to comply with
    discovery rules and court orders. The rule provides that when a party fails to obey an
    order to provide or permit discovery, the court in which the action is pending may enter
    "such orders in regard to the failure as are just," including:
    (A) An order that the matters regarding which the order was made
    or any other designated facts shall be taken to be established for the
    purposes of the action in accordance with the claim of the party obtaining
    the order;
    (B) An order refusing to allow the disobedient party to support or
    oppose designated claims or defenses, or prohibiting him from introducing
    designated matters in evidence;
    34 CP at 237.
    35 CP at 276.
    No. 70637-3-1 / 7
    (C) An order striking out pleadings or parts thereof, or staying
    further proceedings until the order is obeyed, or dismissing the action or
    proceedings or any part thereof, or rendering a judgment by default
    against the disobedient party;
    In lieu of any of the foregoing orders or in addition thereto, the court
    shall require the party failing to obey the order or the attorney advising him
    or both to pay the reasonable expenses, including attorney fees, caused
    by the failure, unless the court finds that the failure was substantially
    justified or that other circumstances make an award of expenses unjust.
    CR 37(b)(2)(A)-(C).
    Discovery sanctions should be "proportional to the nature of the discovery
    violation and the surrounding circumstances" of the case. 
    Rivers, 145 Wash. 2d at 695
    ;
    Maaana v. Hyundai Motor Am., 
    167 Wash. 2d 570
    , 590, 
    220 P.3d 191
    (2009). Generally,
    "the court may impose only the least severe sanction that will be adequate to serve its
    purpose in issuing a sanction." Teter v. Deck, 
    174 Wash. 2d 207
    , 216, 
    274 P.3d 336
    (2012).
    To support imposition of default judgment—the harshest sanction that may be
    imposed upon a defendant—it must be apparent from the record that the trial court
    found that (1) the disobedient party willfully or deliberately violated discovery rules and
    orders, (2) the opposing party was substantially prejudiced in its ability to prepare for
    trial, and (3) that the trial court "'explicitly considered'" whether a lesser sanction would
    have sufficed.      Burnet v. Spokane Ambulance, 
    131 Wash. 2d 484
    , 494, 
    933 P.2d 1036
    (1997) (quoting Snediqar v. Hodderson, 
    53 Wash. App. 476
    , 487, 
    768 P.2d 1
    (1989)). We
    review a trial court's discovery sanctions for abuse of discretion.            Wash. State
    Physicians Ins. Exch. & Ass'n v. Fisons Corp., 
    122 Wash. 2d 299
    , 338, 
    858 P.2d 1054
    (1993). Where a trial court's findings of fact are clearly unsupported by the record, the
    No. 70637-3-1 / 8
    appellate court will find that the trial court abused its discretion. Mayer v. Sto Indus.,
    Inc., 156Wn.2d 677,684, 132P.3d 115 (2006): 
    Maqana, 167 Wash. 2d at 583
    .
    A court may enter an order imposing a discovery sanction without oral argument
    or a colloquy on the record; however in that case, the findings on the Burnet factors of
    willfulness, prejudice, and consideration of alternatives, must be contained within the
    order itself or included in a contemporaneous record. 
    Teter, 174 Wash. 2d at 216-17
    . And
    to allow for meaningful review, the findings themselves must explain the court's
    reasoning for reaching its conclusions. 
    Burnet, 131 Wash. 2d at 494
    .
    For example, in Rivers, the trial court's order dismissing the plaintiff's gender
    discrimination complaint stated that the court had considered the lesser sanctions of
    terms and exclusion of testimony, but "determined that dismissal of [Petitioner's]
    complaint with prejudice is the only appropriate 
    remedy." 145 Wash. 2d at 696
    (alteration
    in original). Reversing the dismissal, the Supreme Court concluded that this "limited
    language" in the trial court's order did not allow the reviewing court to determine
    whether dismissal of the complaint was an appropriate discovery sanction under the
    circumstances.      
    Rivers, 145 Wash. 2d at 696
    .    The court observed that the while the
    circumstances "might well justify the sanction of dismissal," the trial court failed to make
    a sufficient record explaining its consideration and rejection of less harsh alternative
    sanctions. 
    Rivers, 145 Wash. 2d at 699
    .
    In Maqana, on the other hand, the Supreme Court affirmed default judgment
    imposed as a discovery sanction based on the trial court's careful and thorough
    consideration of each of the Burnet factors on the 
    record. 167 Wash. 2d at 584-92
    . The
    record reflected, and the trial court determined that Hyundai, the defendant, engaged in
    8
    No. 70637-3-1 / 9
    willful discovery abuses by making false and inaccurate representations, failing to
    supplement incorrect responses, and making no effort to conduct a proper search
    outside of its legal department for requested information. 
    Maqana, 167 Wash. 2d at 584
    -
    85. The trial court also found that Magana was specifically prejudiced in his ability to
    develop evidence and prepare for trial because when Hyundai finally produced
    documents pertinent to the sole disputed issue, the retrial date was less than two
    months away. 
    Maqana, 167 Wash. 2d at 579-80
    . And more fundamentally, as a result of
    the more than five year delay by Hyundai, witnesses with certain vital evidence were no
    longer living, had disappeared, or had discarded the evidence. 
    Maqana, 167 Wash. 2d at 590
    .   The trial court also explicitly considered the issue of lesser sanctions on the
    record, contemplating the probable effect of a monetary fine on Hyundai, a multi-billion
    dollar corporation, and discussing why admitting certain evidence as a sanction would
    be inadequate or unworkable. 
    Maqana, 167 Wash. 2d at 591-92
    .
    Here, the trial court's specific finding that Northwest acted with intent to frustrate
    La Rosa's attempt to pursue his legal claim satisfies Burnet's requirement that the court
    consider whether the violation at issue was willful.    See Jones v. City of Seattle, 
    179 Wash. 2d 322
    , 345, 
    314 P.3d 380
    (2014) (willfulness is not established by the mere fact of
    violation of a court order or discovery rule, "[sjomething more is needed.") However, the
    findings of substantial prejudice and consideration of lesser sanctions do not
    demonstrate that the court imposed default as a sanction following a "meaningful
    inquiry" into the effect of Northwest's conduct and whether any other sanction could
    compensate La Rosa. 
    Jones, 179 Wash. 2d at 340
    .
    No. 70637-3-1/10
    Our ability to review the court's finding of prejudice is compromised because,
    while the finding of prejudice stems from the failure to produce documents, the order
    does not indicate which documents Northwest possessed and willfully failed to produce.
    La Rosa's motion for default was based on the fact that Northwest had produced only
    18 pages of documents.      La Rosa asserted that Northwest's suggestion that it had
    produced all documents in its possession relevant to the requests for production was
    "demonstrably false."36 For instance, La Rosa noted that Northwest admitted to having
    a customer list, objected to producing it without a protection order, but failed to seek
    such an order.37
    With respect to the request for documents related to claims made by other wind
    turbine purchasers, Northwest responded that "Lawsuit[s] are public records. No other
    claims have been made."38 La Rosa argued that this response was insufficient and that
    Northwest was, at a minimum, required to identify other relevant lawsuits.39 In support
    of his contention that documents related to customer claims existed, La Rosa submitted
    a Snohomish County "confession of judgment," a document that identifies Northwest
    Wind Power, LLC and Thomas as defendants but does not contain any factual
    information about the nature of the lawsuit.40
    La Rosa also claimed that the company's web site contradicted Northwest's
    claim that it possessed no documents related to advertising because the web site
    included links to product videos, manuals, diagrams, specifications, as well as a
    "significant amount of advertising and puffery" about the wind turbine purchased by La
    36 CP at 224.
    37 CP at 194, 226.
    38 CP at 194.
    39 CP at 226.
    40 CP at 101.
    10
    No. 70637-3-1 /11
    Rcsa.41 And La Rosa contended that because the parties corresponded by e-mail
    about the turbine, Northwest could not "seriously claim" to have no documents about the
    subject of the lawsuit.42 In short, while La Rosa alleged that various documents existed
    and were withheld, the order imposing the sanction does not specify what documents
    Northwest should have produced nor explain how La Rosa's case was materially
    damaged by the failure.
    And in any event, the record does not sufficiently support a finding of substantial
    prejudice. La Rosa did not identify any material or irreparable damage to his case. In
    moving for default, the only prejudice La Rosa claimed was the approaching discovery
    cutoff date, which was more than two months away in June 2013 when La Rosa filed his
    motion.43   In contrast to the circumstances in Maqana, La Rosa did not point to any
    critical evidence that was lost, damaged, or had lost its usefulness due to delay. In his
    briefing before this court, La Rosa asserts that he was precluded from developing "any
    facts central to his claims" because of the refusal to provide the list of past customers
    and documents about customer complaints and customer-initiated lawsuits.44                     But
    again, nothing in the order imposing the sanction identifies these, or any other particular
    documents, as wrongfully withheld in violation of prior discovery orders. And La Rosa
    fails to explain how he was prevented from preparing for trial in any manner, in light of
    the fact that documents pertaining to other customers do not appear to relate to the
    41 CP at 226.
    42 CP at 226.
    43 CP at 114.
    44 Br. of Resp't at 20. In his brief on appeal La Rosa identifies several lawsuits and asserts that
    they involve defective turbines. See Br. of Resp't at 4, 5 n.1. But the only evidence in the
    record about the existence of other claims is a court document which does not contain any
    factual information about the case.
    11
    No. 70637-3-1/12
    majority   his   claims   involving   breach    of contract,   breach   of warranties,   and
    misrepresentation.
    Finally, the record does not identify what less severe alternative sanctions the
    trial court considered nor why it determined that those alternatives would not suffice. La
    Rosa argued that default judgment would be the only effective sanction because the
    court had applied lesser sanctions in two previous orders and Northwest had not
    complied with either. This overstates the case because, as La Rosa admits, defense
    counsel eventually sent answers to the interrogatories before the court entered the
    second order to compel.        And in response to the court's second order, Northwest
    produced some documents responsive to the requests for production. But even if the
    trial court concluded that default was the only viable alternative because of the lack of
    full compliance in the face of previous sanctions, the court did not make a clear record
    of its reasoning in reaching this conclusion.
    The only record of the trial court's decision in this case is its order. We are
    mindful of the onus placed on the trial court to create a record that complies with Burnet,
    Rivers, and Jones in these circumstances when a party requests serious sanctions
    pretrial and the court rules on such a motion without a colloquy on the record.
    Nevertheless, as in Rivers, the order in this case is inadequate to support the extreme
    sanction of default because it fails to identify the precise violation and states mere
    conclusions on the issues of prejudice and consideration of lesser sanctions. Nor are
    there sufficient facts in the record to support a finding of substantial prejudice.
    Accordingly, the entry of default judgment in these circumstances constitutes an abuse
    of discretion. We reverse the order of default and judgment.
    12
    No. 70637-3-1/13
    La Rosa requests attorney fees incurred on appeal citing RCW 19.86.090, CR
    37(d), and RAP 18.1. Given our disposition, we deny the request.
    Reversed and remanded.
    ^T/^kes/ , J
    WE CONCUR:
    ^b ^•y*
    13