Opinion
B306324 B313954
11-02-2022
SERGIO MIRALDA, Plaintiff and Respondent, v. CHRIS WU, Defendant and Appellant; LAW OFFICES OF SHUN C. CHEN, APLC, Appellant.
Law Offices of Shun C. Chen and Shun C. Chen for Defendant and Appellant Chris Wu and Appellant Law Offices of Shun C. Chen, APLC. Chami Law, Pouya B. Chami and Pablo F. Colmenares for Plaintiff and Respondent Sergio Miralda.
NOT TO BE PUBLISHED
APPEAL from orders and the judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC640698 Michelle Williams Court, Judge. Affirmed in part and reversed in part.
Law Offices of Shun C. Chen and Shun C. Chen for Defendant and Appellant Chris Wu and Appellant Law Offices of Shun C. Chen, APLC.
Chami Law, Pouya B. Chami and Pablo F. Colmenares for Plaintiff and Respondent Sergio Miralda.
ROTHSCHILD, P. J.
In this consolidated appeal, the Law Offices of Shun C. Chen, APLC (the Chen firm) appeals from orders imposing monetary sanctions against attorney Shun Chen (Chen) and the Chen firm in connection with Chen's conduct during the discovery phase of a wage and hour suit filed by Sergio Miralda (Miralda).Chris Wu (Wu), one of Chen's clients in the wage and hour suit, appeals from orders imposing monetary and issue sanctions in connection with her failure to sit for deposition in the case. Wu also appeals the final judgment following a bench trial in the action, including on the ground that the trial court improperly denied her a jury trial. Finally, Wu appeals the court's award of $150,505 in attorney fees to Miralda. We conclude that the trial court did not abuse its discretion in imposing the sanctions at issue and therefore affirm the court's orders awarding those sanctions. We conclude, however, that the trial court erred in denying Wu a jury trial. We therefore reverse the judgment in favor of Miralda resulting from the bench trial conducted in the case and remand the matter to the trial court with instructions that Wu be permitted to try her case before a jury. Finally, because we reverse the trial judgment in Miralda's favor, we also vacate the trial court's award of attorney fees to Miralda as the prevailing party at trial.
The introduction to appellants' brief identifies Chen, rather than the Chen firm, as the appellant. The relevant notice of appeal, however, identifies the Chen firm as the appellant, and we therefore treat the firm as the appellant for purposes of this appeal.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
The parties have been litigating the underlying case for over five years. We summarize here only those aspects of the factual and procedural history relevant to our resolution of this appeal.
This appeal arises out of a wage and hour dispute between Miralda and his former employer, Heng Sheng, Inc., dba Hot Wok Cafe (Heng Sheng). In November 2016, Miralda filed suit against Heng Sheng, alleging, inter alia, that he was denied overtime wages and rest breaks during his employment with the cafe.
On October 24, 2018, Miralda amended his complaint to name Wu and Chao-Chung Liu (Liu) as additional defendants. A January 15, 2009 statement of information filed with the California Secretary of State identifies Wu and Liu, respectively, as the secretary and the chief executive officer/chief financial officer of Heng Sheng.
Initially, attorney Chen of the Chen firm represented all three named defendants. As detailed post, however, the Chen firm eventually substituted out of its representation of Heng Sheng and Wu.
On December 29, 2017, this court reversed the trial court's order granting Miralda's motion to disqualify the Chen firm from the case. (Miralda v. Heng Sheng, Inc. (Dec. 29, 2017, B282158) [nonpub. opn.].)
A. October 2, 2019 Monetary Sanctions Against Chen
On June 12, 2018, Heng Sheng, through the Chen firm, served what Miralda characterizes as "blanket objections" to many of the requests in Miralda's second set of document requests. The requests sought, inter alia, "documents identifying [Heng Sheng]'s shareholders and officers and directors ([requests] 34 through 36), evidence that [Heng Sheng] respected its corporate formalities ([request] 37)[, and] documents reflecting [Heng Sheng]'s dissolution ([request] 44)."
Miralda's counsel sent a meet-and-confer letter to Chen on June 22, 2018, requesting that he confirm no later than June 29, 2018, that his "client [would] supplement its responses" to certain requests. The parties met and conferred, and Chen granted Miralda "an extension to September 10, 2018 to bring any necessary motions to compel." Miralda's counsel then followed up with a second meet-and-confer letter on July 6, 2018, again seeking "confirmation that [Heng Sheng] [would] be supplementing its discovery responses as set forth in [Miralda's] June 22, 2018 letter."
The Chen firm does not dispute Miralda's assertion that Heng Sheng failed to produce any documents in response to the requests, nor does the firm dispute that Chen failed to respond to the July 6 letter. Rather than respond, Chen filed a substitution of attorney form on July 23, 2018, pursuant to which he substituted out of the case as Heng Sheng's counsel, in favor of a non-attorney identified as Jeff Huang (Huang). A May 26, 2017 statement of information-filed with the California Secretary of State after Miralda initiated his action, but before he named Wu and Liu as individual defendants-identifies Huang as having replaced Wu and Liu in their respective roles as the secretary and chief executive officer/chief financial officer of Heng Sheng. Miralda contends, based on his counsel's investigation, that Huang is a fictional person. The Chen firm disputes that Huang is fictional, but does not dispute that Huang never appeared in the action.
In fact, the Chen firm does not dispute Miralda's contention that Heng Sheng failed to produce any documents at any point in the case.
In the absence of any response to his meet-and-confer correspondence, on August 1, 2018, Miralda filed a motion to compel and for sanctions against Heng Sheng and Chen. The first available hearing date for the motion was October 2, 2019, more than a year after the motion's filing. During that intervening period, on April 16, 2018, Heng Sheng filed a certificate of dissolution with the California Secretary of State, and the trial court subsequently entered default against Heng Sheng.
On September 2, 2018, the Chen firm filed an opposition to Miralda's request for sanctions as to Chen only. The firm argued that, because Chen had been "substituted out" of the case, he "could not respond to [Miralda's counsel]'s request to meet and confer." The firm's opposition did not dispute, however, that Chen failed to respond substantively to Miralda's meet-and-confer request prior to substituting out of the case.
On October 2, 2019, the trial court held a hearing on the motion. The court determined that Heng Sheng's default had mooted Miralda's request for supplemental responses and documents, but that the sanctions request remained viable:
"Chen was substituted out of this case on July 23, 2018, over a month after the responses were served and after plaintiff had attempted to meet and confer on those responses. Whether the requests remained relevant after the second amended complaint was filed is not relevant to the issue of sanctions. The requests addressed an issue raised in the operative complaint at the time they were served and the time the responses were due." The trial court then concluded that Miralda's request for $4,462.50 to compensate his counsel for the time spent bringing the motion was "reasonable," and imposed the amount as a monetary sanction against Heng Sheng and Chen, jointly and severally.
B. February 11, 2020 Monetary Sanctions Against Wu and the Chen Firm
Miralda served a notice for Wu's deposition on April 25, 2019, requesting a May 13, 2019 deposition. Wu objected to the notice on the ground that she was "in the process of becoming a resident of Taiwan," and that her deposition therefore "should be taken in Taiwan." Miralda's further attempts to schedule Wu's deposition were unsuccessful, and on July 31, 2019, he filed a motion to compel the deposition. The motion included a request for $3,997.50 in sanctions against Wu and Chen.
Miralda contends that this representation was false, "as . . . Wu has at all times resided in Chatsworth, California."
The court set Miralda's motion for hearing on February 11, 2020. Because Wu had filed a motion for summary judgment on June 12, 2019 that was set for hearing on August 28, 2019, Miralda applied ex parte to advance the hearing date on his motion to compel Wu's deposition. The court denied both Miralda's ex parte application and Wu's motion for summary judgment.
On December 18, 2019, Chen emailed Miralda's counsel offering to produce Wu for deposition in the United States the week of January 20, 2020. Then, on December 20, 2019, the Chen firm filed an opposition to Miralda's motion to compel and for sanctions on Wu's behalf, in which it requested that the court "award monetary sanctions against [Miralda] and his counsel in the sum of $1,600.00." Two days later, on December 22, 2019, Miralda contends that Chen served him with a substitution of attorney form indicating that the Chen firm was substituting out of its representation of Wu, and that she would be representing herself. Although Miralda sent a December 23, 2019 email response accepting Wu's offer to schedule her deposition for the week of January 20, and followed up with three phone calls to Wu in an attempt to schedule the deposition, Miralda never received a response.
Chen filed the substitution form with the trial court on January 6, 2020. The Chen firm admits in its opening brief that Chen filed the notice of substitution in an effort to avoid the court's imposition of additional sanctions: "On December 20, 2019, based on trial court's sanctions imposed on Mr. Chen . . ., Mr. Chen sensed the trial court might do the same again. Mr. Chen asked Wu to substitute him out as attorney for Wu, and Wu signed a substitution of attorney."
On February 11, 2020, the trial court heard Miralda's motion to compel Wu's deposition and for sanctions. The court heard argument from both Wu and Chen. Wu argued that she "was looking for a job and we were looking in Taiwan, that's why I did not attend deposition, I was in Taiwan." Chen stated during the hearing that he substituted out of his representation of Wu for the express purpose of avoiding further court-imposed sanctions: "I had to sub out because the court keep[s] imposing such huge sanctions."
Following argument, the court adopted its tentative ruling granting the motion to compel and for sanctions. The court reasoned that "[d]efendant Wu's address of record with the court is in Chatsworth, in Los Angeles County," and there "was no substantial justification for [Wu's] demand[ ] [that] her deposition occur in Taiwan." The court found further that Miralda had "established that he served a notice of deposition, and made substantial efforts to meet and confer to obtain a mutually acceptable [deposition] date, without result." The court therefore ordered Wu "to appear for deposition within 15 days at a time and place designated by [Miralda's counsel]," and imposed "sanctions of $3997.50" against "Wu and her former attorney Shun C. Chen, APLC."
C. August 17, 2020 Issue Sanctions Against Wu
Miralda contends that, immediately following the hearing on his motion to compel Wu's deposition, on February 11, 2020, his counsel served on Wu a notice scheduling her deposition for February 24, 2020, via first-class mail. Miralda cites to the executed proof of service, as well as a copy of the metered envelope in which the notice was mailed, in support of that contention.
Contrary to the trial court's express order at the February 11, 2020 hearing-at which Wu appeared and argued-Wu failed to sit for deposition within 15 days. On March 13, 2020, Miralda therefore filed a motion seeking terminating and/or issue sanctions, as well as monetary sanctions, against Wu.
Wu filed an opposition to the motion on July 30, 2020, arguing that she never received the February 11, 2020 deposition notice, and that Miralda's counsel's representation that his office mailed the notice was "untruthful." Wu argued further that, after Miralda filed the motion to compel her deposition, "[t]o search for truth, [she] sent, by [Federal Express], a letter and a money order for $10, to ask [Miralda's counsel] to send a notice of deposition to [her] if he truly wants to depose me. A copy of the said letter, money order, and proof of receipt is attached as Exhibit '1.' Up to this day, I have not heard from [Miralda's counsel]. This is another proof he purposely did not send the [n]otice of [d]eposition to me." Finally, Wu requested that the court "sanction [Miralda] and his attorney for seeking to defraud [his] opponent and the [c]ourt."
Although Chen had substituted out of representing Wu over six months earlier, the electronic filing and service receipt for Wu's opposition nonetheless identifies Chen as the filer.
Miralda filed a reply on August 7, 2020 to which he attached copies of the aforementioned executed proof of service and metered envelope. Miralda's reply explained further that his counsel served the notice "at the address [Wu] . . . provided the [c]ourt" because she "has refused to provide an email address."
The trial court heard Miralda's motion on August 17, 2020. Wu appeared on her own behalf. After hearing argument, the court adopted its tentative ruling, denying monetary sanctions, but "impos[ing] an issue sanction against defendant Chris Wu." Specifically, the court ordered: "The following facts are conclusively established: (1) Defendant Wu, as the alter ego of Heng Sheng Inc., and/or joint employer of [p]laintiff, has failed to compensate [p]laintiff with his regular and overtime wages; (2) Defendant Wu, as an alter ego of Heng Sheng Inc., and/or joint employer of [p]laintiff, has failed to compensate [p]laintiff the minimum wage for all hours worked as required by applicable California law; (3) Defendant, as an alter ego of Heng Sheng Inc., and/or joint employer of [p]laintiff, has failed to facilitate uninterrupted rest breaks for [p]laintiff, and (4) Defendant, as an alter ego of Heng Sheng Inc., and/or joint employer of [p]laintiff, has failed to provide [p]laintiff accurate itemized wage statements."
D. Final Status Conference and Bench Trial
Initially, at an April 30, 2018 case management conference, the trial court set the case for jury trial in response to a request from Heng Sheng-at the time, the only named defendant in the action. Heng Sheng posted its initial jury fee deposit in the amount of $150 on that same day.
As detailed ante, however, by the time of the final status conference-set for January 8, 2021-Wu had been added as a named defendant, and Heng Sheng had filed a notice of dissolution with the California Secretary of State. Miralda therefore elected to proceed to trial against Wu only, having determined that would be the best use of his resources. Wu filed a proposed jury verdict form on January 7, 2021, one day in advance of the January 8, 2021 conference.
Miralda also elected not to pursue his claims against defendant Liu, who allegedly had left the country.
The parties disagree as to what transpired at the January 8 conference. Miralda contends, without any record citations, that "Wu made no mention of a request for a jury trial and when asked if either party (referring to [Miralda] and . . . Wu, only) had posted jury fees, both sides responded in the negative." Wu asserts that Miralda's description of the conference constitutes mere "speculation," although she does not present any competing version of the facts. No transcript of the hearing exists, and the only reference to the issue in the court's minute order is the following: "Neither party having paid jury fees, this matter will proceed as a bench trial." Wu does not dispute that she personally never posted any jury fees in the case.
The face of the court's January 8, 2021 minute order states that Miralda and his counsel did not appear at the January 8 conference. This appears to be a clerical error, however, as Miralda contends that both parties appeared at the conference, and Wu does not dispute this assertion.
The court conducted a one-day bench trial on January 19, 2021, at which Wu represented herself. At the outset of the trial, Wu sought the court's permission to file a "request for a statement of decision." (Capitalization omitted.) The trial court directed Wu to file the request "in the clerk's office after" that day's trial. Wu did so. As relevant to this appeal, the first paragraph of Wu's filed request provides: "Without waiving the prior request for a jury trial, if the [c]ourt decides to conduct a non-jury trial, then defendant Chris Wu . . . hereby requests the [c]ourt to issue a statement of decision." (Capitalization omitted.)
At the bench trial, Wu testified on her own behalf, explaining that she worked for Heng Sheng as a "hostess/cashier" and was not an owner. The trial court found, however, that Wu's "testimony concerning ownership of the restaurant was impeached through the statement of information filed with the [California] Secretary of State on January 15, 2009, which lists her as the secretary of Heng Sheng, Inc." (Capitalization omitted.) Miralda also appeared at the bench trial, remotely, and testified, inter alia, that he worked 54 hours per week for less than minimum wage, never received rest breaks, and was not paid overtime. ~(B3139541 CT 121)~
At the conclusion of the trial, the court took the matter under submission. On February 25, 2021, the court issued its intended statement of decision. Among other findings, the trial court noted that it "[found] plaintiff [Miralda] to be more credible than defendant [Wu]." The court explained that "[Miralda]'s testimony was clear, forthright, and specific about the terms and conditions of his employment. In contrast, [Wu] was impeached in an important area of her testimony and purported to testify about plaintiff's meal and rest periods despite working in a different area of the restaurant."
The trial court then set forth its analysis of the elements of each of Miralda's claims, concluding that "[j]udgment is for plaintiff Sergio Miralda and against defendant Chris Wu in the amount of $55,480.60." In addition, the court noted that Miralda had "withdrawn his claims against . . . Heng Sheng, Inc. and Chao Chung Liu," and dismissed those defendants from the action with prejudice. Finally, the court stated that any objections to the intended statement of decision were "due within 10 days after service" of the statement.
Wu filed an objection to portions of the intended statement of decision on March 8, 2021. The trial court considered and overruled Wu's objection, and on April 30, 2021, the court deemed its intended statement of decision to be the final statement of decision. Consistent with its final statement of decision, on June 9, 2021, the trial court entered judgment in favor of Miralda and against Wu in the amount of $55,480.60.
Finally, on July 12, 2021, the trial court granted in part Miralda's motion for attorney fees, awarding him $150,505, over Wu's objection.
E. Notices of Appeal
On June 15, 2020, the Chen firm filed a timely notice of appeal as to the October 2, 2019 and February 11, 2020 sanctions orders against Chen and the Chen firm. On July 22, 2021, Wu filed a timely notice of appeal as to the June 9, 2022 final judgment and the July 12, 2021 award of attorney fees. On August 27, 2021, this court granted appellants' motion to consolidate the appeals.
Wu's notice of appeal incorrectly identifies June 8, 2021 as the date of the final judgment. We nonetheless exercise our discretion to consider her appeal, as it is evident from the face of the notice that Wu is appealing the "[j]udgment after court trial." In addition, Wu failed to identify expressly in her notice of appeal the court's orders imposing sanctions against her. We nonetheless liberally construe the notice as encompassing those orders, given that Miralda has had an opportunity to respond to Wu's various arguments. (See Cal. Rules of Court, rule 8.100(a)(2); Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20-21.)
DISCUSSION
The Chen firm and Wu identify nine "issues presented" on appeal. (Boldface and capitalization omitted.) Some of the issues, however, are best analyzed as sub-issues of others. For purposes of our discussion, we group the "issues presented" into the following four categories: (1) whether the trial court erred in imposing monetary sanctions against Chen, the Chen firm, and Wu (issues 4 through 7); (2) whether the trial court erred in imposing issue sanctions against Wu (issues 1, 2, and 8); (3) whether the trial court erred by not imposing monetary sanctions against Miralda and his counsel (issue 9); and (4) whether the trial court improperly denied Wu a jury trial (issue 3).
In addition, although not identified in the nine "issues presented," we also address the requests that we (1) vacate the trial court's award of attorney fees to Miralda, and (2) strike portions of Miralda's responsive brief on appeal.
A. The Trial Court Acted Within Its Discretion In Imposing Sanctions Against Chen, the Chen Firm, and Wu
1. Standard of review
We review a trial court's order imposing sanctions for abuse of discretion, "and we resolve any evidentiary conflicts most favorably to the trial court's ruling, reversing 'only if the trial court's action was"' "arbitrary, capricious, or whimsical." '" [Citations].'" (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878 (Ellis).) The Chen firm and Wu "[have] the burden to demonstrate that the trial court erred, and where the evidence is in conflict we will not disturb the trial court's findings." (Ibid.; accord, Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.)
2. October 2, 2019 monetary sanctions against Chen
"The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.... If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (§ 2023.030, subd. (a); see §§ 2023.020, 2025.410, subd. (d), 2025.480, subd. (j), 2031.310, subd. (h).)
Subsequent unspecified statutory references are to the Code of Civil Procedure.
"[M]isuse of the discovery process" includes failing to respond or to submit to an authorized method of discovery; making an unmeritorious objection to discovery without substantial justification; disobeying a court order to provide discovery; making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery; and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so. (§ 2023.010, subds. (d), (e) &(g)-(i); see also Ellis, supra, 218 Cal.App.4th at pp. 877-878, citing In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 809.)
The trial court acted within its discretion in awarding $4,462.50 in sanctions against Chen in its October 2, 2019 order. The trial court found that the disputed discovery requests "addressed an issue raised in the operative complaint at the time they were served and the time the responses were due," and the Chen firm on appeal (see fn. 1) does not dispute Chen's failure substantively to meet and confer concerning the requests.
The Chen firm's contention that we should reverse the sanctions order because the court's minute order does not identify with sufficient specificity which discovery responses were improper is unavailing, as it ignores entirely Chen's failure to meet and confer concerning the disputed requests.
Instead, the firm argues on appeal (as it did before the trial court) that Chen's substitution out of its representation of Heng Sheng more than a month after Chen engaged in the sanctionable conduct somehow immunizes him from the sanctions order. The firm cites no authority supporting this proposition, which Miralda argues persuasively is directly at odds with the purposes and goals of the discovery statutes.
We therefore conclude that the trial court did not abuse its discretion in awarding sanctions against Chen, nor did the sanctions award constitute an "impermissible punishment," as the Chen firm contends. (Capitalization omitted.)
The Chen firm also purports to raise arguments on behalf of Heng Sheng-namely, that (1) the court lacked jurisdiction to impose sanctions on Heng Sheng following its default, (2) the court abused its discretion in imposing the sanctions on Heng Sheng, and (3) the court erred in denying Chen's subsequent motion for reconsideration, which argued that the court should have offset the sanctions by the amount of a judgment allegedly owed by Miralda to Heng Sheng in connection with the prior appeal of the motion to disqualify the Chen firm. We do not address these arguments, as the Chen firm does not represent Heng Sheng, and Heng Sheng is not a party to this appeal.
3. February 11, 2020 monetary sanctions against Wu and the Chen firm
The trial court also acted within its discretion in imposing $3,997.50 in monetary sanctions against Wu and the Chen firm, following Wu's refusal to meet and confer meaningfully concerning a mutually agreeable date for her deposition.
The record reflects that the trial court heard argument, weighed the evidence, and then made factual findings that Miralda had "established that he served a notice of deposition, and made substantial efforts to meet and confer to obtain a mutually acceptable [deposition] date, without result." The court found further that, given that "Wu's address of record with the court is in Chatsworth, in Los Angeles County," there was "no substantial justification" for her demand that Miralda depose her in Taiwan. Drawing all evidentiary conflicts in favor of the ruling, we find no basis for concluding that the court's sanctions award was" '"' "arbitrary, capricious, or whimsical." '" '" (Ellis, supra, 218 Cal.App.4th at p. 878.)
Like the trial court, we reject the Chen firm's contention that, because Miralda's counsel allegedly failed to serve and file a supporting declaration, "[t]here was no evidence in support of" Miralda's motion The record reflects that Miralda's counsel filed a supporting declaration and accompanying proof of service on July 31, 2019, the same day Miralda filed his motion to compel Wu's deposition.
None of Wu's arguments on appeal persuades us otherwise. Wu's contention that the trial court erred because Miralda's counsel failed to respond to her offer to be deposed in the United States the week of January 20, 2020 is belied by the record. Through a December 18, 2019 email from attorney Chen to Miralda's counsel, Wu did indeed offer to sit for deposition the week of January 20, 2020. The record reflects, however, that Miralda's counsel responded to this offer in a December 23, 2019 email to Chen, stating: "We will proceed with . . . Wu's deposition during the timeframe you have indicated (over a month from now and over 6 months since we filed the motion to compel, and over 2 years from the date we initially noticed the depo[sition]). Our [m]otion to [c]ompel the deposition will remain on calendar as we need to be reimbursed for the costs and fees incurred in bringing the motion." Chen then filed a notice substituting out of his representation of Wu on January 6, 2020, and according to Miralda's counsel's reply declaration in support of his motion for issue sanctions, "[o]n three (3) occasions, December 28, 2019, January 8, 2020, and January 13, 2020, [Miralda's counsel's] office attempted to call . . . Wu to confirm her availability for the deposition dates emailed by defense counsel on December 18, 2019, and on each occasion . . . Wu did not answer and did not return [the] call." Wu's assertion that Miralda failed to respond to her offer to sit for deposition in the United States therefore is unfounded.
We reject Wu's argument that "[e]ven if any call was made, arguendo, there was no duty to respond" (italics omitted) because a deponent need only respond to a deposition notice rather than "a phone call." Wu cannot ask us to credit her with acting in good faith by offering to be deposed if she rendered that offer hollow by refusing to meet and confer concerning a specific date for her deposition.
Also unavailing is Wu's argument that section 1008, subdivision (e) deprived the trial court of jurisdiction to adjudicate Miralda's motion to compel and for sanctions. Section 1008, subdivision (e) sets forth the standards governing motions for reconsideration. Miralda's July 31, 2019 motion to compel and for sanctions was not a motion for reconsideration, and his August 28, 2019 ex parte application to advance the hearing date on the motion did not convert it into a request for reconsideration.
It is not entirely clear from appellants' briefing whether they challenge the ruling compelling Wu's deposition, in addition to the sanctions award. We note, however, that any such challenge fails for the same reasons that we conclude the court acted within its discretion in imposing sanctions. (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 467 [trial court's determination of a motion to compel discovery is reviewed for abuse of discretion].)
Finally, Wu's contention that the trial court should have applied section 2023.050, subdivision (e) in adjudicating the motion also fails. That section provides that "there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred." The presumption is inapplicable here because Wu's sanctionable conduct occurred while she still was represented by the Chen firm.
4. August 17, 2020 issue sanctions against Wu
Finally, the trial court acted within its discretion in imposing issue sanctions against Wu, following her failure to comply with the court's February 11, 2020 order requiring that she sit for deposition within 15 days.
A court may impose issue sanctions when "a motion to compel [a deposition] is made and granted and the party to be sanctioned has failed to comply with that order." (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214; see §§ 2023.030, subd. (b), 2025.480, subd. (k).) Wu does not dispute that she was present at the time the court issued its February 11, 2020 order requiring her to sit for deposition within 15 days, nor does she dispute that she failed to comply with the order.
Although she does not contest these legal principles, Wu argues that the issue sanctions here constituted a" 'de facto' judgment" that "the trial court had no jurisdiction to render." (Capitalization omitted.) We reject this argument, as Wu has failed to provide any legal authority in support of her position.
Instead, Wu argues she never received Miralda's February 11, 2020 deposition notice, that Miralda never used the $10 money order she allegedly provided (after Miralda already had filed the motion to compel her deposition) to mail her the deposition notice, and that her failure to comply with the court's order therefore was not "willful." (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327 ["two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful," fn. omitted].)
Wu made these same arguments in her briefing before the trial court. In response, Miralda provided the court with copies of the executed proof of service and metered envelope in which the notice was mailed in support of his assertion that he properly served Wu with the deposition notice. Miralda explained further that Wu refused to provide an email address for service, which necessitated mail service of the notice. This factual record-which casts serious doubt on the credibility of Wu's claim that she did not receive the deposition notice- provides ample support for the trial court's sanctions award.
Wu's remaining arguments do not alter our conclusion.First, in arguing that the proof of service of the February 11, 2020 deposition notice is defective, Wu appears to have confused the proof of service accompanying the notice with other proofs of service filed by Miralda in the action. Wu contends that the "[t]he proof of service was not signed" because it bears only an "/s/" on the signature line, but this is incorrect. The deposition notice's proof of service bears the full written signature of Rosina Gonzalez. Wu also argues that the proof of service fails to comply with section 1013a, subdivision (3)(G) because "Gonzalez did not state she actually placed the envelope into collection pursuant to her employer's ordinary business practice." Although Wu is correct that the proof of service does not quote the precise language in subdivision (3)(G), the notice does state that . . . Gonzalez mailed the notice. It provides, in relevant part:
Wu contends that we should apply de novo review to her remaining arguments, characterizing them as issues of law. Even were we to apply de novo review, we would conclude that Wu's arguments fail, for the reasons discussed post.
In contrast, for example, the proof of service accompanying Miralda's motion for terminating or issue sanctions bears only an "/s/" on the signature line. Wu does not explain, however, how this form of signature prejudiced her, particularly given that she opposed the motion on its merits via a written opposition, as well as at the August 17, 2020 hearing before the court, at which she appeared.
"On February 11, 2020, I caused to be served the following documents:
". . . Notice of Deposition of Chris Wu[.] [¶] . . . [¶]
"X VIA MAIL: By placing a copy thereof for delivery in a separate envelope addressed to each addressee, respectively, as follows:
"X BY FIRST-CLASS MAIL ([Code Civ. Proc.,] §§ 1013 and 1013(a))." (Boldface omitted.)
Second, Wu simply is wrong that the sanctions award "exceed[ed] the court's jurisdiction" because Miralda purportedly failed to allege sufficient facts in support of a joint employer liability theory in the second amended complaint. (Capitalization omitted.) The very purpose of an issue sanction is to permit the trial court to designate facts where a party's misconduct has impeded the opposing party's ability to establish those facts via traditional discovery methods. (See § 2023.030, subd. (b) [issue sanctions permit a court to "designate[ ] facts [that] shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process"].) Moreover, neither of the cases Wu cites in support of her argument involves a sanctions award.
Third, Wu also is incorrect that Heng Sheng was "the prevailing party against Miralda" on all Miralda's claims. The trial court dismissed Heng Sheng with prejudice at the conclusion of the trial only because Miralda elected to withdraw his claims against Heng Sheng after the company's dissolution. This tactical decision by Miralda did not render Heng Sheng the prevailing party. (See Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 773 ["the test for prevailing party is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives"]; § 1032, subd. (a)(4) [defining "prevailing party" as including "the party with a net monetary recovery"].) Wu's factually incorrect argument thus provides no basis for disturbing the sanctions award.
B. The Trial Court Did Not Err in Declining To Impose Sanctions Against Miralda and His Counsel
We conclude that the court did not err in declining to sanction Miralda and his counsel in the October 2, 2019, February 11, 2020, and August 17, 2020 orders, for the same reasons (set forth, ante) we conclude the court acted within its discretion in imposing sanctions against Wu, Chen, and the Chen firm.
C. The Trial Court Erred in Denying Wu a Jury Trial Wu argues that the trial court erroneously denied her a jury trial. We agree.
"Although 'review by way of extraordinary writ is "normally . . . the better practice,"' the 'denial of a jury trial is "reviewable on appeal from the judgment." '" (Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1, 13 (Mackovska); accord, Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 862.) We therefore consider Wu's argument on the merits, despite her failure to file a petition for writ of mandate.
Article I, section 16 of the California Constitution provides: "Trial by jury is an inviolate right and shall be secured to all .... In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute." (Cal. Const., art. I, § 16.) "' "The jury as a fact-finding body occupies so firm and important a place in our system of jurisprudence that any interference with its function in this respect must be examined with the utmost care." '" (Mackovska, supra, 40 Cal.App.5th at p. 9, quoting Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1225.)"' "The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment." '" (Ibid., quoting People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300.)
Code of Civil Procedure section 631, in turn, provides that, "[i]n civil cases," this constitutional right to a trial by jury "may only be waived pursuant to subdivision (f)," which enumerates six ways in which a party may waive the right. (§ 631, subd. (a).) As relevant to this appeal, these include: "(3) By oral consent, in open court, entered in the minutes," and "(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee." (§ 631, subd. (f)(3) &(5).)
Wu argues that she was entitled to a jury trial in this case because (1) although she personally did not post any jury fees, defendant Heng Sheng's posting of fees preserved her right to a jury trial pursuant to section 631, subdivision (f)(5) and (2) she did not otherwise waive jury trial in any of the ways specified in section 631, subdivision (f). Wu points to her filing of a proposed jury verdict form, as well as to the language in her January 19, 2021 filing that she requested a statement of decision from the court "[w]ithout waiving the prior request for a jury trial," as further evidence that she sought a jury trial in the action.
Miralda argues in response that "[t]he fact that a co-defendant, Heng Sheng, had paid jury fees in 2018, before Wu was even named a defendant . . . does not mean that Wu is not a separate party or is excused from paying jury fees." He fails to explain, however, how we can reconcile his position with the plain language of section 631, subdivision (f)(5), which states expressly that a party's failure to timely post jury fees does not result in a jury trial waiver if "another party on the same side of the case has paid th[e] fee." (§ 631, subd. (f)(5).)
Miralda's additional arguments that Wu "never requested a jury trial" and "never sought relief for her waiver of a jury trial" similarly are unavailing because they are unsupported by any evidence. Miralda asserts that "at the final status conference, . . . Wu appeared in pro[pria] per[sona]," that she "made no mention of a request for a jury trial," and that "when asked if either party (referring to [p]laintiff and . . . Wu, only) had posted jury fees, both sides responded in the negative." He argues further that "[t]his is why the trial court noted in its January 2021 minute order that the parties (at the [first status conference]) had not posted jury fees and intended to proceed with a bench trial."
Miralda, however, fails to direct us to any evidence in support of these assertions. The minute order to which he cites is insufficiently detailed to support the contention that Wu failed to request, or affirmatively waived, a jury trial. It provides only: "Neither party having paid jury fees, this matter will proceed as a bench trial." Moreover, Miralda does not dispute that no transcript of the final status conference exists, nor has he provided any other record citations that might support his position. (See City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 [appellate court need not "scour the record unguided"].) The conflicting statements of Miralda's attorney and Wu as to what occurred at the final status conference are not admissible on appeal and, in any case, we have no way of judging their veracity.
Miralda also did not direct us to any additional evidence at oral argument, as he waived argument on appeal.
Accordingly, the only evidence before us-two filings by Wu, one of which expressly confirms her desire for a jury- supports the conclusion that Wu requested, and did not waive, jury trial. We therefore conclude that the trial court erred in denying Wu a jury trial. We thus reverse the June 9, 2021 judgment in Miralda's favor resulting from the bench trial in the case.
D. Given Our Determination that the Trial Court Erred in Conducting a Bench Trial, We Vacate the Attorney Fees Award
The trial court awarded Miralda attorney fees on the basis of his status as "the prevailing party in th[e] case." Because our determination that the trial court erred in denying Wu a jury trial requires that we vacate the June 9, 2021 judgment in Miralda's favor, we also vacate the attorney fee award issued on the basis of that judgment.
E. Request to Strike Portions of Miralda's Brief
Finally, we deny Wu's and the Chen firm's requests that we strike portions of Miralda's brief that reference facts allegedly not contained in the record and certain purportedly "erroneous legal conclusion[s]." With respect to any facts or legal conclusions material to our analysis, we have conducted our own independent review of the record and law, rather than relying on the parties' briefing. (See, e.g., HPT IHG-2 Properties Trust v. City of Anaheim (2015) 243 Cal.App.4th 188, 198 ["if defendants included facts not in the record or arguments raised for the first time in the reply brief, we will determine on our own whether they should be considered"].)
DISPOSITION
We affirm the trial court's sanctions orders dated October 2, 2019, February 11, 2020, and August 17, 2020. We reverse the judgment entered in favor of Miralda, and remand the case to the trial court with instructions that the trial court permit a new trial by jury if requested by either party. We reverse the July 12, 2021 attorney fees award.
The parties are to bear their own costs on appeal.
We concur CHANEY, J. BENDIX, J.