Court of Appeal warns: evasive discovery responses may come back to haunt you at summary judgment stage

The California Court of Appeal issued a warning this month to parties crafting evasive discovery responses: do so at your own peril.

In Field v. U.S. Bank National Association, No. B309111, 2022 WL 2071074, at *1 (Cal.Ct.App. June 9, 2022), Division Eight of the 2nd District Court of Appeal in Los Angeles held in a published opinion that a plaintiff who provided a vague response to a key contention interrogatory could not belatedly clarify her position in opposition to the defendants’ summary judgment motion.

Beth Field brought a wrongful foreclosure action against a bank and loan services company (collectively, Rushmore) after she defaulted on her payments and applied for a loan modification. In response to an interrogatory asking if she contended that the notice of trustee sale referenced in her complaint was not mailed to her in compliance with the Civil Code, she answered: “Unsure.” But when Rushmore moved for summary judgment, Field contended she had never received the notice – thus contradicting her previous discovery response. The trial court granted summary judgment, ruling that Field had not demonstrated any wrongful conduct.

On appeal, Field admitted her interrogatory answer was ambiguous but argued it would be unjust for the court of appeal to uphold summary judgment on this basis. The court of appeal disagreed, writing: “What is unjust is discovery abuse.” Field, 2022 WL 2071074, at *2. It was improper for Field to contradict her earlier position that she was “unsure” of the notice’s arrival during summary judgment – she did not use the mechanism under Code of Civil Procedure Section 2030.310 for amending interrogatory responses, instead “mov[ing] the target after the proponent ha[d] launched its arrow.” Field, 2022 WL 2071074, at *2. Indeed, the court noted, evasive discovery responses are an abuse sanctionable under Section 2023.010(f).

In essence, the decision in Field confirms that the rule established by D’Amico v. Board of Medical Examiners, 11 Cal.3d 1 (1974), equally applies to interrogatory responses as well as deposition testimony. In D’Amico, the California Supreme Court held that “a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.” Shin v. Ahn, 42 Cal.4th 482, 500 n.12 (2007) (citing D’Amico, 11 Cal.3d at 21–22). An earlier court of appeal decision, Union Bank v. Superior Court, 31 Cal.App.4th 573, 592–93 (1995), applied D’Amico to interrogatories in holding that plaintiffs’ factually devoid responses barred the plaintiffs from creating a triable issue at the summary judgment stage via newly introduced separate statements. Field impliedly extends this holding to ambiguous responses as well.

Meanwhile, other courts of appeal have cautioned against an overbroad application of the D’Amico rule. In Ahn v. Kumho Tire U.S.A., Inc., 223 Cal.App.4th 133, 135–36 (2014), Division Two of the 4th District Court of Appeal held that plaintiffs’ factually devoid interrogatory responses – which were later amended and adduced with declarations and evidence – did not constitute clear admissions of fact that could not later be credibly contradicted. The court noted that “evasive answers to written discovery do not constitute a legally sufficient ground” for granting summary judgment, which is appropriate only when all the papers submitted show no genuine issues of fact. Id. at 145–46. The court characterized the D’Amico rule as applying only to clear and unequivocal admissions of fact, not to evasive or factually devoid responses.

Ahn differed from Field and Union Bank in that the plaintiffs had used Section 2030.310 to amend their inadequate initial interrogatory responses and introduce contradictory evidence when opposing the defendant’s motion for summary judgment. Under this section, a party may, without leave of court, serve amended answers to an interrogatory containing information “subsequently discovered, inadvertently omitted, or mistakenly stated” in the initial interrogatory. Civ. Proc. Code § 2030.310(a). At trial, the propounding party may then use the initial answer and the responding party may use the amended answer. However, the propounding party can also move to bind the respondent to their initial answer, which the court may grant if (1) the initial failure to properly answer the interrogatory substantially prejudiced the propounding party, (2) the responding party failed to show substantial justification for their initial answer, and (3) the prejudice cannot be cured by further discovery or use of the initial answer. Id. § 2030.310(c). In Ahn, because the defendants did not make such a motion or move to compel further responses, their assertion that plaintiffs were bound by their initial testimony failed. Ahn, 223 Cal.App.4th at 141 n.4.

A defendant who has moved for summary judgment and received plaintiff’s opposition and amended interrogatories in response will be pressed for time to ask the trial court to bind the plaintiff to their initial answers. As a result, the defendant likely would need to continue the summary judgment hearing to allow their Section 2030.310 motion to be heard concurrently or seek to shorten time on the discovery motion. But buyer beware: if you unsuccessfully move to bind plaintiff to their initial answers, the court can impose sanctions if it deems the motion unjustified. Civ. Proc. Code § 2030.310(d).

Note, too, that Field cuts both ways. If a defendant submits evasive interrogatory responses about an affirmative defense, the plaintiff can file a motion for summary adjudication of the defense based on those interrogatory answers. Unless the defendant amends their responses, they would not be able to change them. This is the heart of the D’Amico rule: you cannot contradict your own testimony to avoid summary judgment.

The Field case reminds both plaintiffs and defendants that crafting evasive discovery responses can hurt you in the long run – you cannot belatedly add factual claims to create disputed issues of fact at the summary judgment stage. While the courts of appeal continue to debate the reach and application of the D’Amico rule, Field clearly instructs trial courts that they are “free to disregard a later declaration that hopes to supplant tactical or slothful ambiguity with tardy specificity.” Field, 2022 WL 2071074, at *3. All litigators would be well-advised to heed this warning.