Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INC031863, Lawrence W. Fry, Judge.
Law Offices of Lloyd Kirschbaum and Lloyd Kirschbaum for Defendants and Appellants.
Zemanek & Mills and Stephan A. Mills for Plaintiffs and Respondents.
OPINION
Gaut, J.
Defendants David Ross and Ross, Rose & Hammill (defendants) appeal a default judgment entered after the trial court granted plaintiffs Jason Rubin and Cira Ross’s motion for terminating sanctions against defendants.
Defendants contend plaintiffs failed to provide proper notice of their motion for terminating sanctions. Defendants also argue that, even if there was adequate notice, the trial court abused its discretion in imposing terminating sanctions rather than less severe sanctions.
We conclude notice was sufficient and there was no abuse of discretion in granting terminating sanctions due to defendants’ repeated obstruction of plaintiffs’ attempts to conduct discovery. The judgment is affirmed.
1. Facts and Procedural Background
This is defendants’ third appeal in this case. Defendants lost both prior appeals, as well as plaintiffs’ three discovery motions in the trial court.
This appeal does not turn on the substantive facts of this case. Procedurally, the facts relevant to the issues are not disputed.
A. Background Facts Incorporated from Defendants’ Previous Appeal
We incorporate the following facts and procedural background stated in defendants’ last appeal (case No. E040545) for purposes of showing defendants’ history of discovery abuses.
On April 9, 2002, a settlement agreement (the Agreement) was entered between the executor of the estate of Ysaac Ross (the Estate), Cira Tapia Ross, the surviving spouse of Ysaac Ross, David Ross, and others not party to this appeal. The Agreement provided that in exchange for a payment of $1 million from Cira Ross as a gift from her community property share of the Estate, in addition to any specific bequests in Ysaac Ross’s will, Ross and the others would fully release the other parties to the Agreement from all claims related to the distribution of Ysaac Ross’s estate. It also provided that no party had assigned any rights, claims or causes of action that were subject to the release.
Thereafter, defendant David Ross (Ross), on behalf of defendant Rose, Rose & Hammill (RRH), filed two creditor’s claims against the Estate in the amount of $1.5 million and $26,861.72. The first claim was based upon Ysaac Ross’s promise to transmit property, or equal value, to RRH upon his death in exchange for services rendered in an unrelated matter. The second claim was also based upon legal services rendered in another unrelated matter. In addition, Ross and RRH (defendants) filed objections to a preliminary distribution of funds from the Estate to Cira Ross.
On April 11, 2003, Jason Rubin and Cira Ross, as co-trustees of the Cira Ross Qualified Domestic Trust (plaintiffs), filed their operative second amended complaint against defendants and others not party to this appeal. Ross was named in causes of action for fraud and deceit and breach of contract, and both he and RRH were named in the cause of action for abuse of process. The complaint was based upon defendants having filed the two claims against the Estate and the objections to the request for preliminary distribution of funds from the Estate to Cira Ross’s qualified domestic trust (to which she had assigned all of her rights in the Estate), when Ross had released the right to do so in the Agreement. Plaintiffs prayed for recovery of $1 million in general damages incurred due to Ross and RRH delaying the preliminary distribution of $10 million by asserting frivolous objections.
In May 2003, plaintiffs served the first set of 81 requests for admissions (RFA’s) and form interrogatories on defendants. In June 2003, defendants served a blanket objection on the ground the proceeding was stayed pending defendants’ anti-SLAPP motion to strike under Code of Civil Procedure section 425.16. Defendants claimed that they established that the complaints against them arose out of acts in furtherance of their right to petition and that the plaintiffs thereafter failed to establish a prima facie case on any of the three causes of action at issue. The trial court denied defendants’ motion.
Strategic lawsuit against public participation.
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
Defendants appealed (case No. E035674). In January 2005, this court affirmed the trial court ruling denying defendants’ anti-SLAPP motion.
After remand, defendants served blanket objections to the RFA’s and, as to interrogatory No. 17.1, defendants provided a blanket response that each RFA was objectionable. The objections to the RFA’s were based primarily on the failure to capitalize defined terms in the discovery requests.
Plaintiffs’ new attorney redrafted the RFA’s and in May 2005, served 115 RFA’s on defendants. It was agreed the first set was withdrawn.
In June 2005, defendants’ attorney, Robert Gentino, sent a response to the new RFA’s, objecting on the ground the set was not consecutively numbered as set number two, was not signed by an attorney, and the RFA’s exceeded 35.
5 In July 2005, Gentino withdrew defendants’ objections and agreed to provide supplemental RFA responses. On July 26, 2005, defendants served supplemental RFA responses (115 RFA’s).
Because defendants, through Gentino, did not agree to provide supplemental interrogatory responses, plaintiffs threatened to file a motion to compel further discovery responses.
In August 2005, defendants served a supplemental response to form interrogatory No. 17.1.
On October 18, 2005, the trial court granted plaintiffs’ two motions to compel further responses to plaintiffs’ RFA’s and form interrogatories. The court ordered supplemental responses within 14 days. As to each motion, the trial court awarded plaintiffs sanctions of $966 against defendants and Gentino, to be paid to plaintiffs’ attorney by November 8, 2005.
On November 8, 2005, plaintiffs’ attorney called Gentino to request the overdue supplemental discovery responses and unpaid sanctions. In response, Gentino denounced the trial court discovery order as “silly.” Gentino claimed he had served the supplemental responses the previous night but plaintiffs did not receive the responses until a week later, on November 15, 2005, two weeks after the court-ordered deadline for serving supplemental responses. The proof of service was unsigned. Appellants also failed to pay the court-ordered sanctions.
On December 21, 2005, plaintiffs filed a motion for terminating and monetary discovery sanctions against defendants or, alternatively, for issue or evidence sanctions, an order compelling compliance with the trial court’s prior discovery order, and for monetary sanctions of $10,724.
On March 10, 2006, the trial court heard plaintiffs’ motion for discovery sanctions and awarded monetary sanctions against defendants for providing evasive and bad faith discovery responses. Defendants appealed the March 10, 2006, discovery order, and this court affirmed (E040545).
B. Facts Leading to Motion for Terminating Sanctions
The following facts, which pertain to the instant appeal, occurred after defendants filed their second notice of appeal (E040545).
Defendants continued to interfere with plaintiffs’ attempts to conduct discovery. Plaintiffs moved for appointment of a discovery referee at depositions. In May 2006, the trial court granted plaintiffs’ motion, and in July, ordered Judge Zebrowski, retired, appointed as the deposition referee. The court further ordered plaintiffs and defendants were each to pay one-half of the referee fees and administrative charges.
Defendants prevented defendant Ross’s deposition from going forward by claiming the order appointing Zebrowski was invalid and refusing to pay one-half the fees. Ross’s deposition was taken off calendar Plaintiffs then filed a motion for terminating sanctions.
On November 1, 2006, the trial court heard and granted plaintiffs’ motion, imposed terminating sanctions, and struck defendants’ answer. After conducting default proceedings, the court entered default judgment against defendants. Defendants appeal the default judgment and underlying orders granting terminating sanctions and entering default against defendants.
2. Notice of Motion for Terminating Sanctions
Defendants contend plaintiffs did not provide sufficient notice of their motion for terminating sanctions. Defendants argue plaintiffs did not provide the mandatory minimum written notice required under section 1005, subdivision (b).
A. Background Facts Relating to Notice
On August 31, 2006, plaintiffs filed and personally served their motion for terminating sanctions. The motion notice stated the hearing date was on September 25, 2006.
When plaintiffs filed and served their motion, they also filed an ex parte application noticed for the next day. The application requested the court to specially set for hearing the motion for terminating sanctions. This was necessary because the court clerk informed plaintiffs the soonest their motion could be heard was October 20, 2006, unless the court specially set the motion.
At the ex parte hearing on September 1 to specially set the motion, the court stated that the requested September 25 hearing date was fine but the court preferred hearing the motion on September 26, and thus changed the hearing date to September 26. Defendants did not appear at the ex parte hearing or file opposition.
On September 1, right after the court changed the hearing date to September 26, plaintiffs served notice of the September 26 hearing date by mail and fax.
On September 18, 2006, defendants served plaintiffs with opposition to the motion. Defendants argued in their opposition that they did not receive adequate notice of plaintiffs’ motion. Defendants also argued the merits and did not request a continuance.
On September 26, 2006, the trial court sua sponte continued the motion hearing to October 3, 2006. Defendants filed supplemental opposition and again argued, among other things, that they received inadequate notice of plaintiffs’ motion, but did not request a continuance or claim they were prejudiced in any way.
At the motion hearing on October 3, 2006, the trial court continued the motion to November 1, 2006, because the trial court did not receive defendants’ initial opposition, which the register of actions indicates was not filed prior to the October 3 hearing. The register of actions states defendants did not attempt to file their initial opposition until October 4, 2006, after the October 3 hearing. According to the register of actions and clerk’s transcript, defendant’s opposition was filed on October 11, 2006.
At the motion hearing on November 1, 2006, defendants once again argued plaintiffs’ motion for terminating sanctions should be denied due to inadequate notice of the September 26 hearing date. Defendants did not request a continuance of the motion due to insufficient notice or claim they were prejudiced.
After the trial court noted it had considered defendants’ initial and supplemental opposition papers, the court stated that defendants had had ample time to file opposition due to plaintiffs personally serving the motion on August 31, 2006, and the continuances of the motion. The trial court granted plaintiffs’ motion for terminating sanctions, stating in the minute order that “The Court finds Defendants’ actions are disrespectful of the justice system and must be sanctioned.”
B. Standard of Review
As to pure questions of fact, we apply the substantial evidence test. We review independently questions of law. (In re Collins (2001) 86 Cal.App.4th 1176, 1181.) “With respect to mixed questions of law and fact, this court reviews the trial court’s application of law to fact under a deferential clearly erroneous standard if the inquiry is predominantly factual. But when the application of law to fact is predominantly legal, such as when it implicates constitutional rights and the exercise of judgment about the values underlying legal principles, this court’s review is de novo.” (Ibid.)
Here, in determining whether defendants received adequate notice of plaintiffs’ motion for terminating sanctions, we review the matter de novo since, based on the undisputed facts as to notice, we must determine whether as a matter of law defendants received adequate notice under section 1005.
C. Applicable Law on Notice
Under section 1005, subdivision (b), a notice of a motion for terminating sanctions must be served at least 16 court days before the hearing. (§ 1005, subd. (b).) Section 1005, subdivision (b) further provides that “if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days . . . and if the notice is served by facsimile transmission . . . the required 16-day period of notice before the hearing shall be increased by two calendar days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. . . . [¶] The court, or a judge thereof, may prescribe a shorter time.”
A notice of a motion must include, among other information, the date of the hearing. (§ 1010; Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 13.)
D. Sufficiency of Notice
Defendants’ notice challenge is meritless. Defendants received more than adequate notice of plaintiffs’ motion for terminating sanctions. Plaintiffs filed and personally served their motion for terminating sanctions on August 31, 2006. The motion notice included a hearing date of September 25, 2006. Under section 1005, subdivision (b), plaintiffs initially provided proper notice of their motion by providing at least 16 court-days notice.
Defendants argue personal service of the motion on August 31, 2006, should not be considered because it did not state the correct hearing date. The day after the motion was filed and personally served, the court specially set the motion on a different hearing date. Defendants claim that because plaintiffs served by mail and fax notice of the new hearing date on September 1, notice was inadequate because defendants only received 16 court-days notice of the September 26, specially set hearing date. Defendants argue that an additional five days was required because notice was served by mail. Also, defendants assert that plaintiffs could not serve the motion by fax because defendants did not agree to service by fax, as required under section 1013. We note under section 1005, subdivision (b), “Section 1013 . . . does not apply to a notice of motion.” (§ 1005, subd. (b).)
None of defendants’ arguments have any merit, primarily because plaintiffs personally served their motion on August 31, 2006, and their motion was not heard until November 1, 2006. Defendants had two months notice of the motion. Plaintiffs’ ex parte motion requesting the motion be specially set for hearing did not alter the fact that the motion had already been filed, served, and noticed. All that was required, after the hearing date was specially set, was notice of the change in the hearing date. Plaintiffs provided such notice on September 1 by mail and fax. Even assuming that under section 1005, subdivision (b), plaintiffs were required to comply with the section 1005, subdivision (b) notice requirements when noticing the new hearing date, by the time the motion was heard on November 1, plaintiffs had provided defendants with more than sufficient notice of the motion under section 1005, subdivision (b).
E. Forfeiture of Notice Objection
Furthermore, defendants forfeited any notice objection by filing both opposition and supplemental opposition arguing the merits; appearing and arguing at the noticed hearings; and failing to request a continuance to allow additional time to prepare opposition. “‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.’” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 (Carlton); see also Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.)
“Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘“intentional relinquishment or abandonment of a known right.”’” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
This rule applies even when, as in the instant case, a party objects to notice but also opposes the matter on the merits and does not request a continuance (Carlton, supra, 77 Cal.App.4th at p. 697) or “where the party may have objected but failed to show prejudice resulting from the defective notice.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343; see also Carlton, supra, at pp. 697-698 and Reedy v. Bussel, supra, 148 Cal.App.4th at pp. 1288, 1289.)
F. Prejudice
Here, defendants fail to show any prejudice. In order to obtain a reversal based upon a procedural flaw such as defective notice, “the appellant must demonstrate not only that the notice was defective, but that he or she was prejudiced. [Citations.] . . . ‘Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. (Code Civ. Proc., § 475.)’” (Reedy v. Bussell, supra, 148 Cal.App.4th at p. 1289, quoting Lever v. Garoogian (1974) 41 Cal.App.3d 37, 40.)
In this case, defendants have not demonstrated any prejudice from initially receiving only 16 court-days notice of the September 26 hearing date. The September 26 hearing was continued and the motion was not decided until November 1. Defendants had ample opportunity to file opposition and, in fact, filed both opposition and supplemental opposition arguing the merits. In addition, defendants appeared at the noticed hearings and at no time requested a continuance, claimed they needed more time to prepare opposition, or argued they were prejudiced in any way by inadequate notice.
3. Terminating Sanctions
Defendants contend the trial court abused its discretion by imposing terminating sanctions and entering default judgment against defendants. Defendants argue the court should have imposed a lesser sanction.
A. Background Facts Leading to Termination Sanctions
The trial court on October 18, 2005, granted plaintiffs’ first discovery motion and ordered defendants to provide verified supplemental responses to plaintiffs’ RFA’s and form interrogatories, without objections and gamesmanship. The court found defendants’ supplemental responses evasive, unintelligible and intentionally confusing. The trial court warned defendants on October 18, that if defendants did not answer the RFA’s and interrogatories “in a detailed good faith manner,” the court “will be seriously considering evidence sanctions and maybe even terminating sanctions. I will not tolerate this kind of gamesmanship.”
The trial court, on March 10, 2006, granted plaintiffs’ second discovery motion and found that all of defendants’ disputed responses “were evasive, unintelligible and meant to confuse.” The court further told defendants’ attorney that in the past, monetary sanctions did not work. Therefore the court was imposing evidentiary sanctions, and warned that if defendants’ abusive discovery tactics continued, the next time the court would impose terminating sanctions.
On May 11, 2006, plaintiffs served additional RFA’s and form interrogatories, and also special interrogatories. Defendants’ responses to these discovery requests were deficient. Also, neither defendants nor their attorney, Gentino, paid the monetary discovery sanctions imposed in the October 18, 2005, and March 10, 2006, discovery sanction orders.
In addition, defendants derailed plaintiffs’ attempt to take defendant David Ross’s deposition. The trial court appointed Judge Zebrowski, retired, as referee to oversee depositions, with the parties to split the cost. Defendants claimed the order was invalid and refused to pay any of Zebrowski’s fees. As a consequence, the alternative dispute resolution (ADR) case manager notified the parties that Judge Zebrowski could not serve as referee due to defendants’ objection to Zebrowski serving as referee and refusal to pay for his services.
On August 31, 2006, plaintiffs filed a motion for terminating and monetary discovery sanctions against defendants and Gentino. Plaintiffs asserted in their motion that defendants’ discovery responses were incomplete and evasive. Specifically, plaintiffs complained that defendants failed to provide any supplemental responses to form interrogatory Nos. 15.1 and 17.1. Interrogatory No. 15.1 requested defendants to state the basis for denying the complaint allegations and defendants’ affirmative defenses. It also requested defendants to identify all witnesses and documents supporting such denials and defenses. Interrogatory No. 17.1 requested information about defendants’ responses to RFA’s.
Plaintiffs also complained that defendants’ responses to plaintiffs’ special interrogatory Nos. 1, 2, 5, 8, 10, 17, 18, 19, 20, 21, and 22, were vague, evasive, nonresponsive, and intentionally confusing. In addition, plaintiffs complained that defendants’ responses to RFA’s, particularly Nos. 122 through 125, and related interrogatory No. 17.1, were uninformative, evasive and incomplete.
Finally, plaintiffs complained that defendants had stonewalled the taking of Ross’s deposition for over a year.
Plaintiffs sought terminating sanctions due to defendants’ bad faith discovery tactics and obdurate refusal to allow plaintiffs to conduct and enforce discovery. The court granted plaintiffs’ motion for terminating sanctions.
B. Law Applicable to Discovery Sanctions
In general, management of discovery lies within the sound discretion of the trial court. Thus, a discovery order is reviewed under the abuse of discretion standard. (County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099, 1104.) The discovery act provides for powerful sanctions for abuse of discovery: “They include monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or precluding the offending party from supporting or opposing designated claims or defenses, evidence sanctions prohibiting the offending party from introducing designated matters into evidence, and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) The trial court’s selection of a particular discovery sanction is an exercise of discretion, “subject to reversal only for manifest abuse exceeding the bounds of reason.” (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988; Cadiz Land Co. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 117.)
C. Discussion
Here, there was no abuse of discretion in the trial court granting terminating sanctions. The record reflects a clear history of defendants abusing the discovery process by repeatedly using obstructionist tactics to interfere with and delay plaintiffs’ discovery. Defendants were recalcitrant in virtually every aspect of discovery. They failed to provide complete, responsive discovery responses and impeded Ross’s deposition by refusing to abide by the trial court’s order appointing a discovery referee to oversee the deposition.
Defendants contend the court should have imposed less severe sanctions than terminating sanctions. Generally, an effort should be made to tailor sanctions to the particular discovery abuse and only impose terminating sanctions in the most extreme cases when it is unlikely that lesser sanctions would not be effective. (See, e.g., Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958.) The instant case is such a case. Defendants’ discovery abuse continued despite the trial court imposing progressively more severe sanctions.
The trial court imposed monetary sanctions initially. Defendants and their attorney failed to pay them and defendants continued abusing the discovery process. The trial court then imposed evidentiary sanctions, as well as monetary sanctions, along with a clear warning that termination sanctions would be next. This was all to no avail. Defendants continued to provide evasive, incomplete, nonresponsive discovery responses and derailed Ross’s deposition by claiming the trial court’s order appointing Judge Zebrowski as a discovery referee was invalid. Under such circumstances, the trial court did not abuse its discretion in granting terminating sanctions.
Defendants argue that terminating sanctions were unwarranted because some of defendants’ objections had merit. But defendants fail to support such argument with citations to the record and fail to refute that many of defendants’ discovery responses were deficient. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Also, “In the absence of a coherent argument in [their] brief describing the discovery and the circumstances of its denial, and citing legal authorities, the discovery contention is waived.” (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 707, fn. 2; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2.)
In addition, defendant’s reliance on Newland v. Superior Court (1995) 40 Cal.App.4th 608, is misplaced. In Newland,the court set aside the trial court’s ruling granting terminating sanctions on the ground a terminating sanction issued solely for failure to pay a monetary sanction is never justified. Here, terminating sanctions were not granted solely for failure to pay monetary sanctions. Such sanctions were appropriately granted since defendants had a history of discovery abuse, which continued even after the court imposed less severe sanctions and after the court warned defendants it would impose terminating sanctions if such conduct continued.
4. Disposition
The judgment is affirmed. Plaintiffs are awarded their costs on appeal.
We concur: Ramirez, P. J., Richli, J.