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Ml* OCT-3 nil'57
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ST1 AMERICA, INC., No. 74045-8-1
Plaintiff, DIVISION ONE
v.
AVALON LEASING, INC.,
UNPUBLISHED OPINION
Respondent,
LEYEN FOOD, LLC,
Appellant. FILED: October 3, 2016
Schindler, J. — Leyen Food LLC (Leyen) appeals the order granting Avalon
Leasing Inc.'s fourth motion to compel discovery and the sanction that prohibited Leyen
from presenting "any testimony or evidence on issues which were the subject of the
discovery." Because the order reflects the court properly considered the factors under
Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997), we affirm.
FACTS
Avalon Leasing Inc. (Avalon) is a major supplier of salmon roe to the international
and domestic markets. On October 28, 2012, Avalon sold salmon roe to Japanese
trading company STI America Inc. (STI). Voyager Seafood Ltd. (Voyager) was a
No. 74045-8-1/2
seafood products processor located in Kent. Voyager supplied some of the roe that
Avalon sold to STI.
Lester Zhou was President and General Manager of Voyager. Zhou was also the
Regional Manager of a meat and poultry product supplier based in City of Industry,
California, Leyen Food LLC (Leyen). Voyager requested STI pay Leyen for the roe
purchased from Avalon. Avalon asserted it was entitled to payment from STI.
STI filed an interpleader action against Avalon and Leyen and deposited the
funds in the court registry. The case scheduling order set May 11, 2015 as the
discovery cutoff date and June 29, 2015 as the trial date.
Avalon scheduled the deposition of Zhou for April 14, 2014. Zhou did not appear
and declined to provide an alternate date for his deposition.
In February 2015, Avalon served Leyen with interrogatories, requests for
production, and requests for admission.
The requests for admissions asked Leyen to admit it "did not have a security
interest in the funds subject of this lawsuit" and "did not have documents evidencing its
alleged acquisition of the salmon and roe which it then claims were sold by it to STI."
Leyen denied all of the requests for admission, "indicating] such documents exist."
The interrogatories and requests for production sought information and records
concerning Leyen's claim to the funds and the relationship between Leyen and Voyager
as "a secured creditor, owner, factor, partner, joint venture, purchaser of the salmon and
roe and re-seller."
On March 20, Avalon filed a motion to compel answers to the first set of
interrogatories and requests for production of documents and requested an order to
No. 74045-8-1/3
compel Zhou to appear for deposition. Leyen claimed the difficulty in responding to the
discovery requests and scheduling depositions was related to the location of the
business in California.
On March 31, the trial court entered an order on the motion to compel. The order
states Leyen "shall fully and completely answer" the first set of interrogatories by April 3
and ordered Zhou to appear for deposition on April 6 or at a later date agreed to by the
parties. The court awarded reasonable attorney fees and sanctions against Leyen of
$3,400.
On March 30, Avalon served Leyen with a second discovery request seeking the
identification and production of the documents supporting the denial to the requests for
admissions.
On April 7, Avalon filed a second motion to compel Leyen to fully and completely
answer the first set of interrogatories and request for production of documents.
On April 27, the trial court entered an order on the second motion to compel.
The order states Leyen has not timely and fully complied with discovery requests and
the court's order and authorized attorney fees and sanctions.
Leyen Foods [sic] has not timely answered discovery, . . . has not as yet
fully complied with this Court's order of March 31, 2015, and ... an award
of attorney fees and sanctions are authorized by CR 26 and CR 37.
The order states Leyen shall fully and completely answer the first set of
interrogatories and requests for production by May 6. The court ordered Leyen to pay
Avalon $500 as sanctions for the failure to "fully and timely comply with this court's
No. 74045-8-1/4
order of March 31, 2015." The court further ordered:
Leyen Foods [sic] will [be] assessed daily sanctions of $250 per court day
after May 6, 2015 for each court day that Defendant Leyen Foods [sic]
fails to fully, accurately and completely answer Avalon Leasing[']s First Set
of Interrogatories PLUS $250 per court day after May 6, 2015 for each
court day it fails to produce . . . any and all records subject of the Avalon
Leasing[']s First Set of Requests For Production.
The order states:
[Fjurther, much more serious sanctions will be considered if Defendant
Leyen Foods [sic] does not very soon come into compliance with this
Court's discovery orders and the case schedule.111
On May 28, Avalon filed a third motion to compel. On June 8, the trial court
entered an order on the third motion to compel. The order states Leyen "shall fully and
completely answer" Avalon's first set of interrogatories and requests for production by
June 10. The court found that because Leyen "has not timely answered discovery, . ..
an award of attorney fees and sanctions are authorized by CR 26 and CR 37."
The court awarded Avalon attorney fees. The court imposed sanctions of $3,500
and sanctions of $200 "per day after June 5 for each day" Leyen "fails to fully,
accurately and completely answer" Avalon's first set of interrogatories "or fails to
produce ... any and all records subject of the . .. Second Set of Requests For
Production." The court found that despite repeated orders, Leyen did not comply with
the discovery requests.
The record in this case of noncompliance by Leyen Foods [sic], despite
repeated orders from this Court, is abysmal. It is difficult not to view
Leyen Food's failure to provide ordered discovery as anything but willful.
Further delays in fully responding to discovery requests will provide a
basis for Avalon Leasing to establish sufficient prejudice to warrant very
significant sanctions.
Emphasis in original.
No. 74045-8-1/5
The order states that if Leyen did not comply with the order, the court would consider
"much more substantial sanctions."2
TSIhould Leyen Foods Tsicl fail to fully and completeNvl answer any
interrogatory of Avalon Leasinq's Second Set of Interrogatories to
Leyen Foods Tsicl or fails to produce any responsive document
responsive to Avalon Leasinq's Second Set of Requests for
Production of Documents bv June 12. 2015 then this court will
seriously consider much more substantial sanctions under Burnett
Isicl v. Spokane Ambulance[3] and its progeny.^
On June 12, Leyen provided partial answers to Avalon's second set of discovery
requests.
On June 17, less than two weeks before the scheduled trial date of June 29,
Avalon filed a fourth motion to compel. Avalon requested the court find Leyen in
contempt and strike Leyen's answer and claim to the funds. In support of its motion,
Avalon attached a number of documents produced by third parties relevant to the
relationship between Voyager and Leyen.
On June 26, the trial court entered an order on the fourth motion to compel. The
court found that Leyen claimed it had a security interest in the funds and had
documents related to acquisition of the salmon roe sold to STI, but that Leyen has not
produced:
[A] finance statement, loan agreement, security agreement, factoring
agreement, or documents of title indicating that it purchased the salmon or
roe, such as, fish tickets, warehouse receipts, bills of sale, or even
purchase invoices.
The court found Leyen "made no effort to supplement its deficient answers to
interrogatories or provide any explanation as to why it could not do so," Leyen "made no
2 Emphasis in original.
3 Burnet v. Spokane Ambulance. 131 Wn.2d 484, 933 P.2d 1036 (1997).
4 Emphasis in original.
No. 74045-8-1/6
effort to supplement its production of documents or provide any explanation as to why
over 62 source records were not produced," and Leyen did not "produce other records
such as exhibits 4-9 to Avalon's Fourth Motion To Compel."
The court found Leyen's response to the second set of discovery requests "were
not complete" and "lacked details."
[T]he answers were not complete, lacked details such as identification of
persons having knowledge of the subject matter of the interrogatory, and
description of documents. . . . The source records were not produced.
Electronic copies were not produced. Electronic records were reported as
being deleted without explanation of why or whether any attempt to
recover them was made. Leyen failed to produce records and even went
so far as to having denied the existence of several records relevant to
determining the relation between Voyager Seafood and itself, which
clearly exist, as suggested by exhibits 4-9 of Avalon's current motion.
The court found Leyen's "failure to produce source records and other documents
was intentional," its "failure to fully answer interrogatories was also intentional," and its
failure to answer interrogatories and to produce records "prejudiced and prevented
Avalon Leasing from preparing for trial or taking depositions of Leyen's witnesses, who
themselves were not disclosed until June 2015."
Leyen has not made its witnesses available for deposition despite this
Court's order of March 31, 2015 ordering that its witnesses appear for
deposition by April 6, 2015. The trial is scheduled for June 29, 2015.
Leyen Food's answers to interrogatories do not disclose any persons who
have any knowledge of or involvement with the transactions or relations at
issue.
The order states the court "has considered and attempted lesser sanctions in the
past. Defendant Leyen has failed to respond to these sanctions or obey this Court's
prior orders compelling discovery." The trial court did not strike Leyen's answer or the
trial date and did not find Leyen in contempt. However, the trial court concluded Leyen
No. 74045-8-1/7
intentionally and willfully disobeyed the court orders of March 31, April 27, and June 8
and imposed sanctions.
The trial court concluded the least restrictive sanction for the willful and
prejudicial failure to comply with the discovery orders was to prohibit Leyen from
introducing evidence "on issues which were the subject of the discovery" including any
alleged claim to the funds.
The least restrictive remedy for Defendant Leyen Food's willful and
prejudicial failure to comply with discovery is to prohibit the introduction of
any testimony or evidence on issues which were the subject of the
discovery. . . .
. . . The appropriate remedy is to prohibit Defendant Leyen Food
from introducing any testimony or evidence regarding any alleged claim it
has to the funds held by the court. Leyen Foods [sic] has not produced
any security agreements, finance agreements, loan agreements, UCC-
1's,[5] fish tickets, bills of sale, warehouse receipts, documents of title,
sales records, or other evidence to support any claim that it has any
interest in the funds as a lender, factor, buyer, owner of the salmon or roe,
or that it purchased it. Leyen Foods [sic] may not introduce any evidence
relating to these matters.
The trial court entered a judgment of $31,982.49 for attorney fees and sanctions
including the attorney fees and sanctions imposed in the April 27 and June 8 discovery
orders.
The parties stipulated to the judgment and stay of trial. The June 29, 2015
stipulation states Avalon's claim to the funds will be senior and superior and the court
will enter an order awarding and distributing the funds to Avalon. The stipulation
preserves Leyen's right to appeal the discovery orders. On September 15, the court
entered a judgment reflecting the terms of the stipulation.
5 Uniform Commercial Code financing statement.
7
No. 74045-8-1/8
ANALYSIS
Leyen challenges the decision to impose the discovery sanction that prohibits
"any testimony or evidence regarding any alleged claim it has to the funds held by the
court." Leyen argues the sanction "amounts to an order of default" and is an abuse of
discretion.
CR 37(b)(2) authorizes the trial court to impose sanctions including dismissal for
violation of the discovery rules. The rule states, in pertinent part:
If a party . . . fails to obey an order to provide or permit discovery,
including an order made under section (a) of this rule [(motion for order
compelling discovery)] . . . , the court in which the action is pending may
make such orders in regard to the failure as are just, and among others
the following:
(B) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting the disobedient party
from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action or
proceedings or any part thereof, or rendering a judgment by default
against the disobedient party.
CR 37(b)(2).
Discovery sanctions are generally within the sound discretion of the trial court.
Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). The
sanction rules are designed to confer wide latitude and discretion on the trial judge to
decide what sanctions are appropriate. Burnet. 131 Wn.2d at 494. A trial judge has
"broad discretion" as to how to respond to parties' noncompliance with discovery and
case management orders. Burnet, 131 Wn.2d at 494.
Such a "discretionary determination should not be disturbed on appeal
except on a clear showing of abuse of discretion, that is, discretion
manifestly unreasonable, or exercised on untenable grounds, or for
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No. 74045-8-1/9
untenable reasons."
Burnet, 131 Wn.2d at 494 (quoting Associated Mortq. Inv'rs v. G.P. Kent Constr. Co., 15
Wn. App. 223, 229, 548 P.2d 558 (1976)).
A trial court may impose the most severe discovery sanctions only upon a
showing that (1) the discovery violation was willful or deliberate, (2) the violation
substantially prejudiced the opponent's ability to prepare for trial, and (3) the court
explicitly considered less severe sanctions. Burnet, 131 Wn.2d at 494. Failure to
consider the three factors amounts to an abuse of discretion. Keck v. Collins, 184
Wn.2d 358, 368, 357 P.3d 1080 (2015). Unchallenged findings are verities on appeal.
Robelv. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).
Here, the unchallenged findings establish that Leyen's "failure to produce source
records and other documents was intentional" and its "failure to fully answer
interrogatories was also intentional." The court found Leyen "intentionally and willfully
disobeyed the aforementioned Court Orders of March 31, April 27 and June 8, 2015."
Leyen Food's failure to answer interrogatories and to produce records
prejudiced and prevented Avalon Leasing from preparing for trial or taking
depositions of Leyen's witnesses, who themselves were not disclosed until
June of 2015.
Leyen cites to the Court of Appeals decision in Maqana v. Hyundai Motor
America, 141 Wn. App. 495, 170 P.3d 1165 (2007), in support of the argument that
Avalon was in no way prejudiced by the delay in production of documents. Leyen's
reliance on the Court of Appeals decision in Maqana is misplaced. In Maqana, the
Court of Appeals concluded Hyundai Motor's late production did not hinder Magana's
ability to investigate incidents and Magana should have anticipated a trial continuance.
Maqana, 141 Wn. App. at 516-18. The Washington Supreme Court reversed. Maqana
No. 74045-8-1/10
v. Hyundai Motor America. 167 Wn.2d 570, 220 P.3d 191 (2009). The court held
Magana was substantially prejudiced by Hyundai Motor's "egregious actions." Maqana,
167Wn.2dat590.
Leyen also argues there was no prejudice because it provided Avalon with all of
the responsive documents that Leyen had in its possession. The record does not
support Leyen's argument. The unchallenged findings establish Leyen listed over 62
source records and approximately 40 exhibits for trial but produced none of those
records.
Leyen argues that "lesser sanctions 'could adequately address the goal of
encouraging good faith compliance.' "6 The record does not support Leyen's argument.
First, the trial court expressly considered lesser sanctions. In the June 26 order, the
court states that it "has considered and attempted lesser sanctions in the past.
Defendant Leyen has failed to respond to these sanctions or obey this Court's prior
orders compelling discovery."
The record establishes the trial court considered the Burnet factors and did not
abuse its discretion by entering the fourth order to compel. The court did not abuse its
discretion by finding that the least restrictive remedy was to preclude Leyen from
introducing evidence on issues that were the subject of discovery or any alleged claim
to the funds. The unchallenged findings establish Leyen did not produce "evidence to
support any claim that it has any interest in the funds as a lender, factor, buyer, owner
of the salmon or roe, or that it purchased it."
6 Quoting Magana, 141 Wn. App. at 520.
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No. 74045-8-1/11
Avalon seeks an award of reasonable attorney fees and costs arguing the appeal
is frivolous. Under RAP 18.9(a), an appellate court may order a party to pay
compensatory damages or terms for filing a frivolous appeal.
An appeal is frivolous if, considering the entire record, the court is
convinced that the appeal presents no debatable issues upon which
reasonable minds might differ, and that the appeal is so devoid of merit
that there is no possibility of reversal.
Advocates for Responsible Dev. v. W. Wash. Growth Mqmt. Hearinqs Bd., 170Wn.2d
577, 580, 245 P.3d 764 (2010). Raising at least one debatable issue precludes finding
that the appeal as a whole is frivolous. Advocates, 170 Wn.2d at 580.
Because Leyen has presented no debatable point of law, the appeal lacks merit
and is frivolous. We award reasonable appellate attorney fees and costs to Avalon
upon compliance with RAP 18.1.
Affirmed.
WE CONCUR:
11
Sti America, Inc. v. Leyen Food, Llc
Combined Opinion