Opinion
BENSON, J. Quoc Vi Luong is the defendant in an action brought by Sabrina Thomas over personal injury she sustained in a car accident. Luong purports to appeal from both an order striking his answer and entering his default as a sanction for failure to make discovery (Code Civ. Proc., § 2034, subd. (d)),1 and the subsequent default judgment entered thereon. The default judgment is appealable. (§ 904.1; Howard v. Galloway (1882) 60 Cal. 10, 11.) The prior order is not appealable but is reviewable on appeal from the judgment. (Hayward Union etc. School Dist. v. Madrid (1965) 234 Cal.App.2d 100, 107 [44 Cal.Rptr. 268].)
The accident occurred at the corner of Webster Street and Geary Boulevard in San Francisco on December 25, 1981, as Luong made a left turn and collided with Thomas’s vehicle. Thomas filed a complaint for damages in October 1982, alleging that Luong negligently caused the accident, injuring her. Luong answered and, in March 1983, Thomas served on Luong a first set of interrogatories consisting of 67 typed questions, many in multiple parts. Luong answered them.
About a year later, on March 20, 1984, Thomas served a “Form Interrogatories Request.” These form interrogatories, approved by the Judicial Council, were largely duplicative of the first set of interrogatories except [79]for questions about Luong’s education, fluency in English, agency at the time of the accident, the existence of reports of the accident and inspections made at the scene, and a set of questions seeking Luong’s contentions about the extent of Thomas’s injuries and the amount of damages. Ten days later, on March 30th, Thomas noticed Luong’s deposition for May 4th.
Between April 7 and 10, Luong’s attorney, Gary L. Selvin, mailed letters to Luong’s last known addresses, but the letters were returned as undeliverable.
On April 26, two days beyond the statutory time for response (§§ 1013, 2030, subd. (a)), Attorney Selvin served “answers” to the second set of interrogatories. The answer was a flat objection to “all interrogatories as asked and answered, repetitive, oppressive and burdensome,” and referred Thomas to Luong’s answers to the first set. Verification was not by Luong, but by Selvin, who averred that his client was absent from the county.
Thomas’s attorney, William Higgins, replied by letter the next day. He objected to the “answers” as late, not verified by Luong, not answered separately and fully, and improper in that any objections should have been made within 30 days. (See § 2034, subd. (a).) As a “professional courtesy,” Higgins gave Selvin 10 days in which to produce legally sufficient answers and announced that his client would otherwise move for further answers and for sanctions.
Shortly thereafter, the two attorneys agreed to continue Luong’s deposition to June 6 and to extend to that date, as well, the time for Luong to answer the interrogatories.
Luong failed to appear at the June 6 deposition or to answer the interrogatories. On June 8, Thomas’s attorney wrote to opposing counsel, noting Luong’s failures and warning (pursuant to rule 339 of the Cal. Rules of Court) that, absent compliance with discovery by the 18th, Thomas would move for sanctions and to strike Luong’s answer and enter his default. The deadline passed, and Thomas brought her motion on June 26, pursuant to section 2034, subdivision (d). Meanwhile, on June 22, Luong’s attorney wrote a letter in which he advised a prospective arbitrator (an arbitration date of August 13 is mentioned) that Luong would be admitting liability and that the only issues would be concerning damages.2
On July 16, Thomas’s motion was heard in superior court before Commissioner (Judge pro tern.) Franklin H. Gentes, who granted the motion [80]and that same day issued an order striking the answer, directing entry of default and imposing sanctions of $364 as costs and attorney fees to Thomas. (The proceedings were not transcribed or reported.) Luong’s attorney petitioned this court for a stay and writ of mandate against the superior court’s order, and the petition was denied by Division One on July 26.
A default hearing was held in superior court the next day, before Judge John Dearman, to determine damages. By a statement of damages (§ 425.11) filed in March, Thomas had claimed general damages of $50,000 plus special damages in an unspecified amount. Thomas testified to special damages totaling $2,912.34, which included lost wages and various medical and related expenses stemming from residual pain in her lower back and shoulder/ neck area. The pain, which had persisted off and on over the two and a half years since the accident, was brought on or aggravated, she said, by lifting she performed in her work as a licensed vocational nurse. She anticipated, based on those symptoms and her professional experience, that she would probably have some continued disability for another two and a half years or so. Her counsel suggested to the court that an appropriate award would be $15,000, which he represented was the policy limit of Luong’s insurance. Without commenting on the insurance or any part of Thomas’s testimony, Judge Dearman announced that judgment would be entered for $12,500 plus costs.
Counsel for Luong was present at the default hearing but, due to his client’s default having already been taken, was not permitted to present evidence or otherwise contest Thomas’s showing. (§ 585; see Don v. Cruz (1982) 131 Cal.App.3d 695, 702 [182 Cal.Rptr. 581],)3
This timely appeal from the ensuing default judgment was taken on September 21, 1984.4
The question we are called upon to decide is whether the trial court abused its judicial discretion by imposing the ultimate sanction of striking defendant’s answer and entering his default. These actions resulted in a monetary judgment against the defendant without his having had the opportunity to contest any aspect of plaintiff’s case, including damages. Having considered the relevant facts before the court at the time discretion was exercised, the established legal principles and policies germane to the issue [81]to which discretion was directed, and the settled standards governing appellate review of discretionary rulings, we conclude that indeed discretion was abused and that the judgment must be set aside.
Section 2034, subdivision (d) allows the imposition of sanctions against a party who wilfully fails to appear at a deposition or to answer interrogatories. A variety of sanctions are provided by the statute. The court “. . . may strike out all or any part of any pleading ... or dismiss the action or proceeding or any part thereof, or enter a judgment of default... or impose other penalties of a lesser nature that the court may deem just, . . . .”
The use of the ultimate sanction, as that imposed in the case before us, is a drastic penalty and case law recognizes that it should be sparingly used. (Kaplan v. Eldorado Ins. Co. (1976) 55 Cal.App.3d 587, 591 [127 Cal.Rptr. 699].) In exercising its sanction power under the discovery statutes the trial court must keep a “fundamental precept” fairly in mind. That is, that ‘“The 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 [so that a] sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.’” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958 [210 Cal.Rptr. 464] quoting Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 [149 Cal.Rptr. 499].)
A purpose of the discovery act, as observed in Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303 [10 Cal.Rptr. 377] is to . . enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits. [Citations.] Its purpose is ‘not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.’ [Citations.]”
While there is no question but that a trial court, under appropriate circumstances, has the power to sanction a party who refuses to provide discovery to which his adversary is entitled, the sanction chosen must not be the result of an arbitrary selection. It should not deprive a party of all right to defend an action if the discriminating imposition of a lesser sanction will serve to protect the legitimate interests of the party harmed by the failure to provide discovery.
Here, defendant’s counsel, faced with the reality of a missing client, offered to stipulate to liability. This offer was made well in advance of the sanction hearing and was rejected by plaintiff’s counsel. Defendant’s [82]willingness to stipulate to liability and “solely arbitrate the issue of damages” was reiterated in his opposition papers filed with the court prior to the sanction hearing. Had plaintiff’s counsel accepted the stipulation, or had the trial court exercised the lesser sanction of striking the defendant’s pleadings insofar as they contested liability or causation, the deposition of the defendant would have been superfluous. If plaintiff required further protection, the additional lesser sanction of precluding defendant from testifying at trial (or arbitration) could have been imposed.
With respect to the defendant’s failure to answer the form interrogatories, we first observe that defendant had provided much of the information sought by answering the first set of interrogatories. By imposing the lesser sanction of striking those portions of defendant’s answer that contest liability and causation, much of the information sought by the form interrogatories becomes irrelevant and, if additional protection were required, the court could have imposed a further lesser sanction of denying introduction of evidence contradicting or amending the prior answers. As to the “Personal Injury Contention Interrogatories” (Judicial Council Form Interrogatories 16.1-16.9), a number of lesser sanctions could have been imposed by the court which would have provided ample protection to plaintiff and yet allowed defendant to maintain a defense to the damage aspect of the case. Defendant could have been denied the right to introduce defense medical testimony, or to contend that medical services were unrelated to the accident, or to contend that the cost of medical services or income loss was unreasonable or unrelated, etc. We do not pass on the propriety of applying these lesser sanctions individually or collectively in the present case, but merely point out their availability at the time of the sanction hearing. Even if all the lesser sanctions were imposed, at the very least defendant would have retained the fundamental right to cross-examine the plaintiff, to object to inadmissible evidence, and to argue the issue of the value of pain and suffering and the extent of residual disability before the trier of fact.
In our judgment the sanction imposed substantially exceeded what was reasonably required to protect the plaintiff. It constituted a forfeiture. Judicial discretion was abused.
Before concluding we wish to express our awareness of the section 2034, subdivision (d) requirement which calls for a showing of “willfulness” before sanctions can be imposed. It would appear to us that, given the defendant’s absence for approximately a four-month period during which he failed to advise his counsel of his whereabouts, coupled with his earlier response to plaintiff’s extensive interrogatories, a substantial question is raised as to his “willfulness.” However, in view of our determination that [83]there was an abuse of discretion in any event, we elect not to address this issue.
We reverse the judgment and vacate the order striking defendant’s answer and entering his default. The cause is remanded to the trial court for further proceedings in accordance with this opinion.
Defendant is awarded costs on appeal.
Kline, P. J., concurred.
All undesignated section references in this opinion are to the Code of Civil Procedure.
It appears from the record that Luong’s attorney offered at some point to stipulate to liability and try only the damages issues. The offer was refused.
Luong’s counsel did, however, move at the start of the hearing for a two- to three-week continuance to allow time for him to bring a motion to set aside the default. The motion was denied. On this appeal, Luong has not argued that the denial of the continuance was error.
Luong’s counsel represents in his briefing that private detectives hired to find Luong finally succeeded some two weeks after the notice of appeal had been filed.