Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says

Timothy Kowal, Esq.
August 24, 2021

There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better move to compel — do not ask the question again. The second is, if you are going to ask a lot of questions (here, 723 of them), you had better be sure they are necessary. Here, they were found to violate the local rules of civility.

After his wife committed suicide, husband filed a petition to probate her will. But two family members filed a will contest. Husband responded by propounding 723 interrogatories on the two family members. The family members responded, but husband thought the answers deficient.

Meeting and conferring, the parties apparently agreed husband would serve "substitute interrogatories" more streamlined than the original set of 723. Husband did so, serving a second set of 54 interrogatories. But the family members objected to those as redundant. Husband filed a motion to compel, which was granted, along with over $17,000 in sanctions. The trial court noted it was not happy about sanctioning, but the rules are "pretty strict. There has to be substantial justification for the objections, and I just don't see it here."

Subsequent Set of Written Discovery Containing Redundant Interrogatories Did Not Restart the Clock to Move to Compel:

The Second District Court of Appeal reversed. The the second sets sought the same information as the first sets, and respondents failed to move to compel further responses to the first sets within the time limits of section 2030.300.

On the issue of propounding redundant interrogatories, the court pointed to Prof'l Career Colleges, Magna Inst. v. Superior Court (1989) 207 Cal.App.3d 490, 493 (Career Colleges) as directly on point. There, the plaintiff propounded a set of interrogatories on the defendant, which included an interrogatory seeking the addresses of students who enrolled in a program during a specified period. (Id. at p. 492.) The defendant objected and the plaintiff made no motion to compel a further response. (Ibid.) A month and a half later, the plaintiff propounded a second set of interrogatories on the defendant with mostly new interrogatories, but also included an interrogatory that sought essentially the same information as the interrogatory in the first set (i.e., addresses of students who enrolled in a program during a specific period). (Ibid.) After the defendant objected on the ground the new interrogatory was the same as the old interrogatory in the first set, “the plaintiff finally filed and served a motion to compel ....” (Ibid.) On appeal, the court held the motion to compel further response to the new interrogatory was time-barred. (Id. at p. 494.) The court reasoned “it would be an absurdity to say that a party who fails to meet the time limits of section 2030 may avoid the consequences of his delay and lack of diligence by propounding the same question again.” (Ibid.)

Just so here. The propounding party may not “reset the clock” on a motion to compel by propounding the second sets of interrogatories seeking the same information as the first sets. (Career Colleges, supra, 207 Cal.App.3d at p. 493.)

Propounding More than 35 Interrogatories Requires More Than a Mere Conclusion the Case Is "Complex":

The court also had a few words to say about the respondent-husbands set of 723 interrogatories: "That was too many interrogatories." Code of Civil Procedure section 2030.030, subdivision (b) provides for 35 special interrogatories. A party may propound more than 35 if supplied by a declaration under section 2030.040, attesting to a permissible reason justifying the additional questions. Here, the respondent's counsel attached the standard declaration stating the additional interrogatories were necessary “because of the complexity or the quantity of the existing and potential issues in the particular case” due to the “number of contentions ... made in the [will contest].”

The court found that showing did not support more than the 35 interrogatories allowed by statute. "[O]n the spectrum of cases pending in the Los Angeles County Superior Court [this case] is far from complex, and the number of interrogatories served clearly was excessive."

Propounding Excessive Interrogatories May Violate the Rules of Civility:

The court also noted that counsel had demonstrated that 723 interrogatories was excessive by successfully winnowing the number from 723 in the first sets to 54 in the second. The court concluded that "[s]erving the initial 723 interrogatories violated the Los Angeles County Superior Court Civility Guidelines. (Los Angeles County Superior Court, Local Rules, Appendix 3.A(g)(1) [“Interrogatories should be used sparingly and never to harass or impose undue burden or expense on adversaries.”].)"

Appellate Tip: This discovery dispute would not have been immediately reviewable on appeal had the respondent-husband not sought and obtained sanctions greater than $5,000. A discovery order is not immediately appealable. But an order directing payment of monetary sanctions over $5,000 is immediately appealable. (Code Civ. Proc., § 904.1, subd. (a)(12).) The merits of the trial court's order granting the motions to compel are also appealable. Although a discovery order is not separately appealable (see Macaluso v. Superior Court (2013) 219 Cal.App.4th 1042, 1049), the trial court's decision on a discovery matter is immediately reviewable if, as here, it “necessarily affects” an appealable order. (§ 906.) Having appellate counsel involved early in the case, even in discovery disputes, can help keep your litigation team forewarned and forearmed about these kinds of outcomes.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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