Plaintiff’s Evasive Discovery Responses Leads To Defeat By Motion For Summary Judgment

June 23, 2022

In Field v. U.S. Bank National Association (Cal. Ct. App. No. B309111 – June 9, 2022), the appellate court ruled that a party cannot evade discovery duties and then attempt to defeat summary judgment by adding factual claims to create last-minute disputed issues of material fact.

Plaintiff Beth Field executed a 2007 note for over one million dollars.  She went on to default on her payments and applied for a loan modification in 2017. After a 2018 foreclosure sale, Field brought a wrongful foreclosure action against the bank and loan services company (“Defendants”).

Once the case reached the discovery stage, the defense propounded a key interrogatory to Field, which asked for any facts related to her contention that she did not receive notice of the proposed trustee sale. She answered this interrogatory with one word: “Unsure.”

The defense later moved for summary judgment on the ground its foreclosure against Field was legally sound.  Defendants showed they properly recorded the notice of the trustee sale, but Field opposed the motion on the ground that defendants never served her with this notice.  As part of her opposition, Field contradicted her earlier discovery response about being “unsure.” Now, she was sure, and she swore she never received the notice.

The trial court granted the defense’s motion for summary judgment.  Fields appealed on multiple points, one of which was whether she received notice of the trustee’s sale.

The defense argued that Field did not properly raise the issue of notice in the trial court, because Field first mentioned this issue in opposition to the motion for summary judgment.  The defendants contended that Fields thus failed to give notice of this argument either in her pleading or in her evidence.  The defendants also reiterated Field’s one-word interrogatory response.

In response, Field claimed her interrogatory response was ambiguous, and that ending her lawsuit on this basis would be “unjust.” The appellate court disagreed. When it comes to unjust proceedings, discovery abuse falls well within that category.  When Field was served with discovery, she should have answered the interrogatory unambiguously, forthrightly, and truthfully. It was unjust for Field to initially respond with “unsure” and then contradict this position during summary judgment.

Code of Civil Procedure section 2030.310 provides a mechanism for parties to amend interrogatory responses, but Field did not attempt to amend. Instead, she gave an evasive response, which is sanctionable (See Code Civ. Proc. § 2023.010(f).) Further, parties prepare interrogatory answers with the assistance of counsel, meaning that Field’s counsel participated in her ambiguous response. This is not what the Legislature intended. Discovery statutes are meant to take the game element out of trial preparation. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) A party that serves factually devoid discovery responses may expose the responding party to summary judgment.

Because Field’s untimely and contradictory effort could not support any attack on the Defendants’ granted summary judgment motion, the appellate court affirmed the judgment.

Monica Marks is an Associate attorney in Ericksen Arbuthnot’s Fresno/Central Valley Office.  She can be reached at (559) 449-2600 or by email at