Opinion
A109077
12-14-2006
PATRICIA A. McCOLM, Plaintiff and Appellant, v. DAVID GREENBAUM et al., Defendants and Respondents.
Patricia A. McColm appeals following the dismissal of her personal injury action, which alleged defamation and intentional infliction of emotional distress. The trial court dismissed the case as a terminating sanction for failure to comply with discovery orders compelling her attendance at deposition. Pursuant to court order, this appeal is limited to appellants allegation that terminating sanctions were unwarranted because, in the absence of a motion to reopen discovery, the trial court erred in ordering discovery following a continuance of the initial trial date. We affirm.
Appellant has been found previously to be a vexatious litigant and is subject to a prefiling order. By reason of this prefiling order, appellant submitted an application for permission to appeal various orders. On June 15, 2005, this court granted permission to appeal the order granting terminating sanctions only. As to that order, permission to appeal was limited to appellants "verified allegation that terminating sanctions were unwarranted because in the absence of a motion to reopen discovery, the trial court erred in ordering discovery following a continuance of the initial trial date." We, therefore, do not address appellants claims of error that go beyond this narrow issue.
BACKGROUND
A. Default Proceedings
On January 4, 1999, appellant filed a personal injury complaint in propria persona against her next-door neighbors, respondents herein. On the same day, the trial court entered an order granting appellants application for permission to file an action (Code Civ. Proc. § 391.7), and striking her third cause of action for "violation of civil rights." On April 9, 1999, the trial court entered an order to show cause why sanctions should not be imposed for failure to serve respondents, and set a hearing for May 11, 1999.
All further statutory references are to the Code of Civil Procedure.
On May 5, 1999, appellant removed the action to the United States Bankruptcy Court, Northern Division of California. Thereafter, appellant attempted to enter a default against respondents in the bankruptcy court based on the allegations in her personal injury action. In an order remanding appellants action against respondents to the trial court, the bankruptcy court noted that appellant "never disclosed to this court that her third claim for relief had been stricken . . . . More importantly, she sought the default judgment even though she had not previously served [respondents] with any summons issued by the State Court or this court." Because of the lack of proof of service of summons and other deficiencies, the bankruptcy court issued an order to show cause and denied a request to enter a default judgment. The bankruptcy court considered imposing sanctions on appellant for her improper efforts to obtain the default judgment, but deferred the matter for the trial courts consideration.
Following remand to the trial court, appellant once again attempted to enter a default judgment against respondents. On September 28, 1999, the trial court denied appellants request for entry of default on the ground that she had failed to serve respondents properly with the summons and complaint.
On May 18, 2001, appellant filed her first amended complaint. On June 19, 2001, respondents filed a demurrer to the first amended complaint. While the demurrer was pending, appellant proceeded to enter a default against respondents. The trial court subsequently set aside the default entered against respondents. Respondents filed an answer to the complaint on January 15, 2003.
B. Initial Trial Date and Discovery Attempts
On May 20, 2003, the trial court set the case for a jury trial on November 17, 2003. In June 2003, respondents first attempted to depose appellant. Appellants deposition was originally noticed for June 2, 2003. At appellants request, the deposition was continued to July 24, 2003, pursuant to an amended notice. On or about July 19, 2003, appellant served written objections to the amended notice. She objected to, among other things, the location of the deposition (Walnut Creek) and respondents intention to videotape the deposition. Appellant also requested that the deposition last no more than three hours per day.
After consideration of appellants requests, on July 24, 2003, respondents agreed in writing to: 1) take appellants deposition in San Francisco; 2) limit the deposition to four hours per day; and 3) provide appellant with a copy of the videotape at no charge. Respondents then served a second amended notice of deposition, setting the deposition for September 2, 2003.
Prior to receipt of the second amended notice of deposition, on July 23, 2003, appellant filed a motion for an order staying her deposition and for a protective order. Appellant requested, among other things, that: 1) the deposition not be recorded by videotape; 2) the deposition transcript not be disclosed to respondents (or any third persons); and 3) the deposition transcript be sealed.
Appellants motion regarding the stay and protective order was scheduled to be heard on August 29, 2003. Respondents filed opposition to the motion. On the date of the scheduled hearing, appellant requested that the motion be taken off calendar. At appellants request, the trial court dropped the hearing on the motion. That same day, respondents notified appellant of their intent to proceed with the deposition, as noticed, on September 2, 2003.
Appellant failed to appear at her deposition scheduled on September 2, 2003. On that same day, she filed another motion for an order staying her deposition and for a protective order.
C. Motion to Compel and Disqualification of Discovery Commissioner
On September 4, 2003, respondents sought an ex parte application for an order shortening time to hear a motion to compel appellant to attend her deposition. The trial court granted the order shortening time the same day and the motion to compel was scheduled to be heard on September 23, 2003. The trial court, on its own motion, continued the motion to compel to October 1, 2003, at which time appellants motion for a stay and protective order was scheduled to be heard.
Appellant asserts that neither she nor the clerk of the court has been able to locate any order purporting to shorten time. However, the register of actions clearly reflects that respondents filed an ex parte application for an order shortening time on September 4, 2003, which the trial court granted that same day. Moreover, respondents appendix includes the September 4, 2003 order shortening time granted by the trial court.
On September 29, 2003, the trial court issued a tentative ruling granting respondents motion to compel. On October 1, 2003, appellant filed a statement of disqualification for cause (§ 170.1) against Commissioner Everett A. Hewlett, Jr., based, in part, on his tentative ruling granting respondents motion to compel. Commissioner Hewlett then continued the hearing on respondents motion to compel until October 31, 2003, pending the resolution of appellants motion for disqualification.
On October 10, 2003, respondents filed an ex parte application for an order shortening time to hear a motion to continue the November 17, 2003 trial date. The trial court granted respondents motion on October 30, 2003, and the trial was continued to June 14, 2004.
On November 18, 2003, Judge Robert B. Atack issued a ruling on appellants challenge of Commissioner Hewlett. Judge Atack determined that there was no "reasonable basis" for a finding of any bias or prejudice by Commissioner Hewlett toward appellant. Although Judge Atack determined that Commissioner Hewlett had filed a timely, verified answer, the clerk had failed to timely mail a copy of the answer to appellant as required by section 170.3, subdivision (c)(3). By reason of this procedural deficiency, Judge Atack granted the disqualification.
D. Reassignment and First Order Compelling Deposition
Following the disqualification of Commissioner Hewlett, the pending discovery motions (respondents motion to compel and appellants motion for a stay and protective order) were assigned to Judge Richard Kramer. The motions were heard on February 20, 2004, at which time the trial court issued a minute order denying appellants motion for a protective order and stay, and granting respondents motion to compel. Appellant was ordered to appear for deposition on April 1, 2004.
Pursuant to the trial courts order, respondents noticed appellants deposition for April 1, 2004. On March 16, 2004, appellant faxed a letter to respondents counsel, advising that she would be appearing ex parte on March 18, 2004, to seek a continuance of all motions on calendar and to obtain a stay of the action due to unspecified health reasons. That same day, appellant sent a letter to the trial court objecting to the "proposed order," and advising that she was ill and needed "to avoid all matters for an additional time." Appellant did not appear for her ex parte application noticed for March 18, 2004.
Appellant enclosed a note from her physician stating, "She is ill with the flu and is unable to keep appointments."
On March 26, 2004, the trial court signed and filed a formal version of the February 20, 2004 minute order compelling appellants deposition to commence on April 1, 2004. Appellant failed to appear for her deposition on April 1, 2004.
E. First Motion for Terminating Sanctions and Second Order Compelling Deposition
On April 7, 2004, respondents filed an ex parte application for an order shortening time to hear a motion for terminating sanctions, or in the alternative to compel appellants deposition. The trial court granted the order shortening time and scheduled respondents motion for April 15, 2004.
Judge Charlene Padovani Mitchell heard respondents motion on April 15, 2004. The minute order of the hearing reflects that after the trial court gave its tentative rulings on the discovery motions, appellant disagreed with the court and left the courtroom. The trial court adopted its tentative rulings, denying appellants ex parte application to vacate the order shortening time to hear respondents motion. The trial court denied respondents motion for sanctions, but granted the motion to compel the deposition of appellant. In its ruling, the trial court expressly admonished appellant that if she failed to appear for the deposition, "the result could be sanctions or dismissal of the action."
Appellant contends that respondents engaged in "judge shopping" by noticing the motion in Department 502 before Judge Mitchell. While it is unclear from the record why the motion was noticed in Department 502, there is no evidence of "judge shopping."
Respondents subsequently served appellant with both the order and a notice of deposition for April 26, 2004. Appellant failed to appear for her deposition on April 26, 2004.
To the extent appellant contends that respondents improperly noticed the April 26, 2004 deposition, the issue is not a proper subject of the limited appeal before us.
F. Second Motion for Terminating Sanctions
On April 30, 2004, respondents filed a second motion for terminating sanctions, which was scheduled to be heard on June 8, 2004. That same day, appellant filed objections to the order compelling her deposition and also sought reconsideration of that order.
On May 21, 2004, appellant appeared ex parte, seeking, among other things, an order continuing the trial, as well as the hearing on the motion for terminating sanctions. The trial court ordered appellants motion for reconsideration and respondents motion for terminating sanctions be continued to July 19, 2004, subject to a continuance of the trial then scheduled for June 14, 2004. Appellant filed a formal motion to continue the trial, which was granted. The trial was continued to November 8, 2004.
On July 9, 2004, appellant filed another motion to continue the trial. At the hearing on the motion, the trial court granted a continuance of the trial to January 10, 2005. The trial court subsequently continued the hearing on respondents motion for terminating sanctions, and appellants motion for reconsideration of the motion compelling her deposition to December 17, 2004.
On December 15, 2004, appellant filed an ex parte application for an order taking all discovery motions off calendar. On December 17, 2004, the trial court denied appellants motion to continue the hearing and to take all discovery matters off calendar. The trial court also denied appellants motion for reconsideration. The trial court then granted respondents motion for terminating sanctions and dismissed the action with prejudice.
This timely appeal followed.
DISCUSSION
A. Motion to Strike
Preliminarily, appellant contends that we should strike respondents brief due to "lack of decorum" and "misstatement of the record." Citing Saks v. Parilla, Hubbard & Militzok (1998) 67 Cal.App.4th 565, 567 (Saks), appellant asserts we should strike respondents brief because it is "replete with character assassination based on `stigma. " However, in Saks, the court did not strike the offending briefs, but instead chose to chastise counsel for "[t]he name-calling, accusations of criminal conduct, and pernicious character assassinations" that the court found were "offensive not only because they [were] indecorous and unprofessional, but because they [were] completely unrelated to the legal issue presented." (Id. at p. 567, fn. 3.) Here, unlike in Saks, we find nothing in the respondents reply brief that is indecorous or unprofessional. Accordingly, there is no basis to chastise respondents counsel or to strike respondents brief.
Appellant further contends that we should strike respondents brief because it misstates the record and contains statements not supported by the record. To the extent either party misrepresented the record or asserted facts without adequate citation to the record, we have disregarded such representations. (See Cal. Rules of Court, rule 14(e)(2)(C).)
Finally, appellant contends that we should strike the first 48 pages of respondents appendix because it contains documents or portions of documents that are unnecessary for the proper consideration of the issue raised on appeal. We disagree. The documents included in respondents appendix are properly considered on appeal, as they directly pertain to the procedural history of the case. (See Cal. Rules of Court, rule 5.1(b)(2) & (6).)
Accordingly, appellants request that we strike respondents brief and portions of respondents appendix is denied.
B. The Trial Court Did Not Err in Granting the Motion for Terminating Sanctions
1. Standard of Review
Pursuant to section 2023.010, misuse of the discovery process includes: "[f]ailing to respond or to submit to an authorized method of discovery," and "[d]isobeying a court order to provide discovery." (§ 2023.010, subds. (d) & (g).) Under section 2023.030, subdivision (d)(3), a trial court may dismiss an action when a party engages in conduct that is misuse of the discovery process. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; see also 2 Witkin, Cal. Evidence (4th ed. 2000) Discovery, § 258, pp. 1080-1083 [setting forth cases in which terminating sanctions properly imposed].)
We review the trial courts dismissal order entered as a discovery sanction for an abuse of discretion. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244; R.S. Creative, Inc. v. Creative Cotton, Ltd., supra, 75 Cal.App.4th at pp. 495-496.) Appellant contends that the abuse of discretion standard is not applicable because the propriety of the discovery sanctions in this case turns on statutory interpretation. To the extent we are required to engage in statutory interpretation in determining whether the trial court erred, we review the issue de novo, as a question of law. (People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1071.)
2. Estoppel
Appellant contends that respondents motion for terminating sanctions should have been denied because it was brought after the discovery cutoff date. She argues that the trial court erred ordering discovery following a continuance of the initial trial date because respondents did not file a motion to reopen discovery.
"In California, the cutoff date for discovery is generally linked to `the date initially set for trial or, as it is sometimes phrased, `the initial trial date. " (Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1292 (Beverly Hospital).) Section 2024.020, subdivision (a) provides in relevant part, "[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery to be heard on or before the 15th day, before the date initially set for trial of the action."
Section 2024.020, subdivision (b), provides in relevant part, "a continuance or postponement of the trial date does not operate to reopen discovery proceedings." Section 2024.050, subdivision (a) provides, "On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set."
The initial trial date in this action was November 17, 2003, with a November 3, 2003 deadline (§ 2016.060) for bringing discovery motions. Respondents contend that appellants dilatory conduct estops her from relying on the discovery motion cutoff date. The abuse of discretion standard applies to this issue, and under the substantial evidence rule, we resolve all evidentiary conflicts in respondents favor. (Sears Roebuck & Co. v. National Union Fire Ins. Co. (2005) 131 Cal.App.4th 1342, 1351 (Sears).) Based on the evidence set forth in detail ante, we agree that appellant is estopped to rely on the discovery motion cutoff date.
We find Sears, supra, 131 Cal.App.4th 1342, to be particularly instructive in this regard. There, the trial court imposed monetary sanctions against a nonparty witness, an attorney, who failed to comply with deposition and document production subpoenas. (Id. at p. 1346.) The document production subpoena contained a typographical error that mistakenly identified the nonparty witness as the deposition officer. (Id. at pp. 1346-1347.) The nonparty witness asserted, among other things, that the discovery motion should have been denied because it was brought after the discovery cutoff date. (Id. at p. 1351.) The record reflected that the plaintiffs lawyers had been diligently trying to contact the nonparty witness about his deposition appearance and document production well in advance of the discovery cutoff date. (Ibid.) However, "just 18 days before the motion cutoff date, and after weeks of evasion[] . . . [the nonparty witness] contended he had in fact complied, at least with the document production subpoenas, by producing the documents to himself." (Id. at p. 1352.)
The appellate court affirmed the sanctions order, finding that the record showed that the nonpartys action brought about the delay, thereby estopping him from relying on the discovery cutoff date. (Sears, supra, 131 Cal.App.4th at p. 1352.) In so holding, the court reasoned as follows: "Although [plaintiff] might have acted sooner to [the nonparty witnesss] machinations, it was [the nonparty witness] who set this chain of events in motion by his evasions and false assurances. Even if [plaintiff] danced too close to the cutoff date, it was [the nonparty witness] who was leading. On this record, we see no abuse of discretion in finding that [the nonparty witness] was estopped from relying on the discovery motion cutoff date." (Ibid.)
Here, as in Sears, supra, 131 Cal.App.4th 1342, the record reflects that respondents lawyers diligently attempted to take appellants deposition well in advance of the discovery cutoff date. Respondents first motion to compel was filed (September 3, 2003) and set for hearing (September 23, 2003), prior to the November 3, 2003 discovery motion cutoff date. Moreover, a tentative ruling granting the motion to compel was granted on September 29, 2003, prior to the discovery motion cutoff date. However, appellants various legal maneuvers, including the challenge of the discovery referee, set in motion a chain of events that caused the order granting terminating sanctions to be issued more than a year after the discovery cutoff date.
Appellant asserts that respondents perpetrated a fraud on the trial court by referencing the discovery cutoff date in relation to the continued trial date of June 14, 2004. Even assuming that respondents relied on the continued trial date as extending the discovery cutoff date, the fact remains that respondents initially noticed appellants deposition well in advance of the discovery cutoff date and filed their initial motion to compel well in advance of the discovery motion cutoff date.
Appellant argues that Sears, supra, 131 Cal.App.4th 1342 is factually distinguishable from the instant case because, among other things, it involved a nonparty witness who lulled the plaintiff into inaction on the false sense of security that he would comply with discovery. While it is true that Sears is factually dissimilar from the instant case in certain respects, the record here reflects that appellant engaged in tactics, starting in June 2003, which resulted in the type of protracted proceedings that our discovery statutes are intended to prevent.
"The purposes of Californias discovery statutes are well known. They are intended, among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise. [Citation.] We must construe the statutes time limitations in a way which is consistent with the overall purposes of discovery cited above. [Citation.]" (Beverly Hospital v. Superior Court, supra, 19 Cal.App.4th 1289 at pp. 1294-1296 [holding that mistrial, new trial, or reversal restarts time limitations on discovery].)
"A central purpose of the Discovery Act was to keep the trial courts out of the business of refereeing day-to-day discovery by requiring parties to conduct discovery and resolve disputes with minimal judicial involvement. As Justice Epstein explained, one of the `running themes of the Discovery Act was to avoid delays and reduce the judicial costs of litigating discovery disputes. [Citation.] . . . [W]e are disinclined to adopt a construction of the discovery provisions that `would plunge the trial and appellate courts back into a sea of discovery disputes when their dockets are already at flood stage. (Beverly Hospital v. Superior Court, supra, 19 Cal.App.4th at p. 1296.)" (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 247, 253-254 [affirming rule announced in Beverly Hospital].)
In considering the costs and delays created by appellants dilatory conduct, we conclude she is estopped from relying on the discovery motion cutoff date. Accordingly, the fact that respondents did not file a motion to reopen discovery is not dispositive. Rather, appellants failure to appear at the numerous depositions noticed by respondents and her failure to comply with two discovery orders compelling her attendance at deposition was misuse of the discovery process, for which the trial court was authorized to impose terminating sanctions dismissing the action. (§ 2023.030, subd. (d)(3).)
By reason of our conclusion that appellant is estopped to rely on the discovery motion cutoff date, we do not address respondents alternate argument that the motion to compel implicitly requested the court to reopen discovery within the meaning of section 2024.050.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal, in an amount to be determined by the trial court.
We concur:
Ruvolo, P.J.
Reardon, J.