Opinion
A151533
12-14-2018
JANET TAPIA, Plaintiff and Appellant, v. ARRIBA JUNTOS et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-15-546472)
Plaintiff Janet Tapia appeals from an order granting terminating sanctions and dismissing this action in its entirety. We affirm.
I. BACKGROUND
On June 19, 2015, plaintiff filed this action in pro. per. against defendants Arriba Juntos, Dalila Ahumada, Marilyn Bunang and Patricia Melgar. On May 20, 2016, the superior court issued an order stating that defendants were entitled to up to 10 hours of additional deposition testimony from plaintiff. On November 8, 2016, the court found, after a hearing, that plaintiff had violated the May 20 order and sanctioned her $2,557. The court noted in its order that it had sanctioned plaintiff "at least five times for non-compliance" and she was "hereby put on notice that, should her unlawful conduct continue, terminating sanctions will be seriously considered."
Defendants noticed plaintiff's continuing deposition for October 12, 2016. On October 11, plaintiff requested that it be postponed to at least October 21. Defendants agreed and served an amended notice for November 15, 2016. Their counsel sent an email confirming this date on November 10, 2016, and called plaintiff on November 14 to leave a voicemail message confirming. Plaintiff did not respond and did not appear at the scheduled deposition. On November 16, 2016, the day after the deposition was scheduled, plaintiff emailed counsel and claimed she had only been served five days before the deposition, despite that she was served on October 25—21 days before. She claimed that a health issue precluded her from " 'any deposition.' "
Defendants filed a motion for terminating sanctions based on plaintiff's willful failure to appear at her deposition. (See Code Civ. Proc., § 2023.030.) Plaintiff filed no opposition and did not appear at the hearing set for December 20, 2016. At that hearing, counsel for defendants advised the court that the moving papers served on plaintiff at her address on file with the court had been returned to him, forwarding address unknown. The day before, plaintiff filed a first amended complaint in another court case listing the address she had on file with the court as her address of record.
The court continued the hearing to January 10, 2017, and ordered counsel for defendants to attempt to obtain plaintiff's current mailing address, with a courtesy copy to be served by email. Counsel complied, emailing plaintiff three times with documents and calling her on December 29, 2016. Plaintiff answered the phone, said she was in the hospital, and declined to provide a mailing address. The next day, December 30, she filed a proof of service in the other litigation and again listed the same address. She did not oppose the motion to impose terminating sanctions in this case and did not appear at the January 10, 2017 hearing.
The hearing on terminating sanctions was continued to February 7, 2017, and the court issued an interim discovery order permitting service by email and directing plaintiff to advise the court and counsel of her proper address, as required by California Rules of Court, rule 2.200. Defendants' counsel was directed to serve a copy of this order on plaintiff by email and did so. Counsel called plaintiff on the phone on January 12, but plaintiff hung up while he was speaking. Counsel called plaintiff back and left a detailed voicemail regarding the new hearing date and need to respond; he left several other voicemail messages on six different dates. Plaintiff did not respond, but communicated with defendants' counsel multiple times regarding the other lawsuit. On January 29, plaintiff sent an email requesting that counsel stop harassing her because she did not owe him any money. Plaintiff did not oppose the motion for terminating sanctions and did not appear at the hearing.
The court granted the motion and ordered the case dismissed. It noted that it had previously indicated terminating sanctions would be seriously considered, but despite this plaintiff had not appeared for her deposition and had not given advance notice of her failure to appear. The court found plaintiff's conduct willful, noted the hearing on terminating sanctions had twice been continued to allow her to present opposition, yet she had not done so despite speaking to defendant's counsel about another case.
II. DISCUSSION
In this case, plaintiff did not oppose the motion to impose terminating sanctions, despite the reasonable inference that she had actual notice of the hearing at which the order was entered. She has forfeited her claim that the dismissal was improperly granted. " 'An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been but was not presented to the lower court by some appropriate method.' " (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) " '[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.' [Citation.]" (Ibid, italics omitted.) Appellate courts are "loath to reverse a judgment on grounds . . . the trial court did not have an opportunity to consider. [Citation.]" (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.)
Even if we consider the ruling on its merits, Code of Civil Procedure section 2023.030 permits the court to impose terminating sanctions for misuse of the discovery process and a willful discovery violation. "The trial court may order a terminating sanction for discovery abuse 'after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.' [Citation.] Generally, '[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.' [Citation.] Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. [Citation.]" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)
We review the trial court's ruling for abuse of discretion. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224.) In reviewing the ruling on the motion, evidentiary conflicts are resolved most favorably to the trial court's ruling and reversal is appropriate only if the court's action was arbitrary or capricious. (Ibid.) The trial court's order is presumed correct. (Ibid.) "When assessing credibility and motivation, past experience is often a prime indicator. An abuse of discovery in one instance can imply a continuing intent to abuse in other instances." (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430-431.)
Here, the trial court did not abuse its discretion in concluding that plaintiff's failure to appear at her deposition as ordered, following numerous discovery violations, warranted the extreme remedy of terminating sanctions. The court gave plaintiff advance notice and several opportunities to explain her conduct, yet she did not do so. Though plaintiff claims to have had a health issue and to have been hospitalized during this period, this did not prevent her from appearing in the other case she had filed during the same timeframe. Nor is plaintiff assisted by her pro. per. status. It is well established that " '[w]hen a litigant is appearing in propria persona, [s]he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations].' [Citations.]" (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.)
Plaintiff argues that terminating sanctions should not be used to punish a party or place the other party in a better position than she would be if she obtained the discovery. Appellant relies on Caryl Richards, Inc. v. Superior Court of Los Angeles County (1961) 188 Cal.App.2d 300, 305, in which the court held that a discovery sanction that "denies a party any right to defend the action or to present evidence upon issues of fact which are entirely unaffected by the discovery procedure before it" is an abuse of discretion and denies the recalcitrant party due process of law. But here, we cannot assume that plaintiff's deposition was unrelated to the merits of the action or could have been remedied by less drastic sanctions. Plaintiff also cites Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 798, in which the defendant filed partial answers to interrogatories and the appellate court held that while the plaintiff could proceed with a motion to compel, the trial court had no power to strike the answer and enter a default. Here, the record shows plaintiff did not act in good faith or partially comply with the court's order. (See, e.g., Karz v. Karl (1982) 137 Cal.App.3d 637, 650-651.)
To the extent plaintiff is arguing that she is entitled to relief from default under Code of Civil Procedure section 473, we disagree. Plaintiff did not bring a motion on this ground or otherwise seek relief in the trial court. In any event, she cites no "mistake, inadvertence, surprise or excusable neglect" that would excuse her conduct and cause the court to reconsider the terminating sanctions. (Code Civ. Proc., § 473, subd. (b).)
III. DISPOSITION
The judgment is affirmed. Costs to respondents.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice purusant to article VI, section 6 of the California Constitution --------