Hammoudeh v. Jada (CA2 10/09/09)

This is a case about discovery sanctions. In Seidman, 563 Ariz. Adv. Rep. 17, Division One held that the trial court can’t strike a pleading and enter default as a sanction without holding an evidentiary hearing to determine whether the failure to make discovery was the client’s fault or the lawyer’s. In this case, Division Two finds a way around that.

Jada bought a used car from Hammoudeh; the story seems to be basically that he sold her a clunker and sued her when she wouldn’t pay. She counterclaimed. He tried to stonewall discovery and, although sanctioned once, continued to do so.  At one point he personally attested under oath that his responses were true and correct to the best of his knowledge and belief; the opinion doesn’t say whether this was routine boilerplate on a discovery form or some sort of separate affidavit (in either event, it may mean that his lawyer was beginning to catch on and protect himself). When his lawyer withdrew, Hammoudeh did nothing to supplement earlier discovery. He did not claim, says the opinion, that his lawyer had prevented him from making proper discovery.

Jada moved to strike the Complaint. Hammoudeh didn’t file a response but showed up at oral argument to request an evidentiary hearing. The court denied this and held a default hearing, apparently on Jada’s counterclaim. It lasted a couple of days; Hammoudeh attended the first day but not the second. He made no offer of proof.

On this record the court observed that it was “apparent from the record, and undisputed, that Hammoudeh was personally aware of, and responsible for, the inadequate discovery responses.” Hammoudeh’s personal fault was “readily apparent from the record,” the trial court made a specific finding of it, and so the court could not “say the court abused its discretion in concluding an evidentiary hearing was not necessary to determine fault.”

A commonsense result:  if the fault is already on the record, you don’t need to hold a special hearing to put it there. Properly used, this exception will eat the Seidman rule.