Most of us who practice in Riverside County are familiar with Local Pre-Trial Rule 3401 (“Rule 3401″) or, at the very least, we have heard judges reference this rule during trial setting conferences.

In case you have not, Rule 3401 requires parties to exchange certain documents and information at least 14 days before trial, including witness and exhibit lists, and a statement of undisputed facts and issues of law. Rule 3401 also mandates that the parties meet at least seven days before trial to conduct an “Issues Conference,” where the parties must discuss several items. (Rule 3401(2), (3).) A party who, “without good cause,” fails to comply with Rule 3401 is subject to sanctions, including the imposition of evidentiary sanctions. (Rule 3401(11).) But, “litigant beware,” although Rule 3401 is limited to Riverside County, other counties have identical or similar requirements.

The case of Reales Investment v. Johnson (2020) 55 Cal.App.5th 463 illustrates the power of the court in the imposition of sanctions due to a party’s failure to abide by Rule 3401 and other rules. In this action, real estate investor Reales Investment, LLC (“Reales”) brought suit against a supplier of lumber arising out of the supplier’s filing of a mechanic’s lien against the property for unpaid lumber costs. During the course of litigation, Reales failed to adequately respond to several sets of written discovery (responding with “[t]his response will be supplemented” but never actually supplementing the response); failed to produce witnesses for deposition (and, after indicating that it had no expert witnesses, designating its percipient witnesses as experts); failed to participate in Rule 3401 pre-trial procedure; and failed to produce any evidence before trial other than the designation of witnesses who then failed to appear for deposition and/or produce documents. As more succinctly stated by the Court, “[i]n short, Reales completely failed to participate in discovery and mandatory pretrial proceedings.” (Id. at 533.)

The outcome of Reales’ gamesmanship? The Appellate Court affirmed the trial court’s (1) denial of Reales’ oral motion for a continuance of the trial date, which was made by its new counsel on the first day of trial, because a party requesting a continuance must do so “by a noticed motion or an ex parte application” and “with supporting declarations.” (Id. at 530, citing Cal. Rules of Court, Rule 3.1332(b)); and (2) exclusionary order prohibiting Reales, except for impeachment evidence, from introducing into evidence any document or witness not disclosed during the mandatory pretrial conference required by Rule 3401.

Notably, in entering its exclusionary order, the trial court not only took into account Reales’ failure to comply with Rule 3401 pretrial requirements, but also its “improper litigation conduct” and failure to participate in discovery. (Id. at 532-534.) Lastly, the Court held that a trial court “need not expressly find that a party’s conduct [in failing to comply with Rule 3401] is willful before excluding that party’s evidence at trial in order to ensure a fair trial,” and “[w]hether Reales’s conduct was intentional or inadvertent, the fact remain[ed] that Reales did not meaningfully engage in discovery or comply with Rule 3401’s pretrial requirements.” (Id. at 534.) In doing so, the Court continued, Reales “deprived [] Johnson of the opportunity to fairly prepare for trial.” (Id.) And, as we all should know, “[t]he purpose of discovery is to make trial ‘less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’” (Id., citing Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376.)

Author’s Bio:  Marie E. Wood

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