Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-07-CV084642.
Premo, J.
Appellant Jennifer H. Cheng and respondent Jose Mari Casas were already engaged in a marital dissolution proceeding initiated by Casas when Cheng filed a civil action against Casas alleging domestic violence, assault, battery and sexual battery. Casas cross-complained against Cheng, also alleging domestic violence, assault and battery. After Cheng failed to respond to discovery requests in the civil action, despite a prior court order to do so, Casas’s motion for terminating and monetary sanctions was granted. Cheng’s subsequent motion, pursuant to Code of Civil Procedure section 473, to vacate the order granting terminating and monetary sanctions was denied and a default judgment on the cross-complaint was entered against her.
Further unspecified statutory references are to the Code of Civil Procedure.
On appeal, Cheng argues that the trial court abused its discretion in awarding terminating sanctions against her and in denying her section 473 motion to vacate those sanctions.
We disagree and shall affirm.
I. Factual and Procedural Background
In January 2007, Casas filed a petition to dissolve his marriage to Cheng.
In April 2007, Cheng filed a personal injury action against Casas, alleging causes of action for domestic violence (Civ. Code, § 1708.6), assault, battery, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress and sexual battery (id. § 1708.5). In her complaint, Cheng alleged that during her relationship with Casas, he pulled her hair, kicked her, struck her, sat on her stomach, twisted her hand and fingers and caused her to contract genital herpes.
Casas filed an answer and a cross-complaint alleging causes of action for battery, domestic violence, assault and negligence.
On May 22, 2008, the day the dissolution petition was set for trial, Cheng and Casas entered into a written stipulation which resolved that matter. The stipulation, which was approved by the court and subsequently incorporated into a judgment of dissolution, expressly provided that it was “without prejudice to any claims or defenses” in the pending civil action.
On May 23, 2008, Casas propounded discovery requests on Cheng in the pending civil action, consisting of special interrogatories, form interrogatories, a request for production and request for admissions. The discovery requests were served on Cheng’s attorney of record.
On June 10, 2008, the trial court granted Cheng’s counsel’s motion to be relieved as counsel of record. Two days later, Cheng’s counsel sought and obtained an extension of time for Cheng to respond to Casas’s discovery requests. Pursuant to that agreement, responses were due on or before July 18, 2008.
On June 13, 2008, Casas served additional discovery, consisting of a request for admissions (set two), request for production (set two) and form interrogatories (set two), on Cheng. The discovery was mailed to Cheng’s address of record.
Cheng failed to respond to any discovery requests, and Casas moved to compel responses to his special interrogatories, form interrogatories and requests for production. He filed a separate motion seeking to have his requests for admissions deemed admitted. The motions and supporting papers were served on Cheng at her address of record, and the hearing was set for August 29, 2008.
On August 8, 2008, Casas’s counsel, upon being informed that Cheng had agreed to accept $75,000 to settle the pending civil action, emailed Casas a mutual release and settlement agreement he prepared for Cheng’s signature. According to Casas, Cheng would not sign the settlement agreement and demanded an additional $110,000, which Casas refused to pay.
At an August 12, 2008 trial setting conference, Cheng appeared in propria persona and requested a continuance, which was granted to September 16, 2008. Cheng and Casas subsequently met on August 18, 2008 and discussed settlement, but came to no agreement.
Cheng filed no opposition to Casas’s discovery motions and failed to appear at the hearing. In a written order filed on September 2, 2008, the trial court granted the motions and ordered Cheng to provide responses to the interrogatories and requests for production within 20 calendar days, i.e., by September 22. Cheng was also ordered to pay $640 in sanctions to Casas. The court clerk served the order on Cheng by mail at her address of record.
Cheng failed to respond to Casas’s outstanding discovery requests as ordered. Casas subsequently moved for sanctions, including issue sanctions, evidence sanctions or terminating sanctions. Cheng again failed to file an opposition to the motion and failed to appear at the October 24, 2008 hearing. The court granted Casas’s motion, dismissed Cheng’s complaint with prejudice, struck Cheng’s answer to the cross-complaint and awarded an additional $640 in sanctions to Casas. Casas served a notice of entry of the order on Cheng by mail.
A. The motion to vacate
Cheng, through newly retained counsel, moved to vacate the September 2, 2008 and October 24, 2008 discovery orders. As to the September 2 order, Cheng argued that it should be vacated on the grounds that she “has [sic] excusable neglect or mistake and had no notice of discovery outstanding, nor notice of the motion.” With respect to the October 24 order, it must be set aside on the grounds that “(1) it was filed premature, (2) no meet or confer was done by [Casas], but was secretly proceeded with this drastic measure by [Casas] such that there cannot be any factual finding of [Cheng]’s intentional disobey of the court’s order that could form the basis of the 10/24/2008’s order, (3) [Cheng] did not receive either the Court’s 9/2/2008’s order or the motion for issue, evidence terminating sanction and the proofs of service appear to be defective (4) The motion for issue, evidence, terminating sanction was scheduled in violation of civil local rule 7(c).” The motion to vacate was not accompanied by discovery responses, but advised that such responses would be filed prior to the scheduled hearing on December 19, 2008.
In support of her motion, Cheng submitted a declaration stating that she first learned of the outstanding discovery requests in early November 2008, when she visited the court to copy papers from the court file. She denied receiving the moving papers for the discovery hearings, denied knowing that those hearings had been scheduled and denied receiving either of the orders entered after those hearings. By way of explanation, Cheng declared that she had “overlooked the civil proceeding” due to ongoing discussions about her option to buy out Casas’s interest in the family home.
There was no attorney declaration of fault submitted with the motion. The attorney who made a special appearance on Cheng’s behalf to request a continuance of the trial setting conference submitted a declaration stating that he was retained only to advise Cheng on settlement of the civil action, to make a special appearance at the trial setting conference and to advise her “upon issues related to post-judgment settlement of her dissolution of marriage action.” He further declared that, at the trial setting conference, there were “[n]o discussions concerning any outstanding discovery orders, discovery issues, or discovery motions (either pending or contemplated), ... between [Casas’s counsel] and myself, and no such issue(s) were addressed to the Court.”
Casas opposed the motion to vacate and submitted, among other evidence, a copy of an envelope he received from Cheng postmarked November 12, 2008, with a return address which appears to be Cheng’s address of record. In connection with her reply papers, Cheng served partial responses to Casas’s discovery requests, but failed to pay any of the monetary sanctions.
The return address is partially obscured in the exhibit attached to Casas’s opposition declaration, but in that declaration he states that the “envelope is addressed in [Cheng’s] handwriting, and shows Clubhouse Lane [i.e., the address of record] as the return address.” The visible portion of the return address does have the same street number (10655) as the address of record.
Following a hearing, the trial court denied the motion to vacate. In its written order, the court found that “[Cheng] failed to act reasonably by ignoring discovery, discovery motions and court orders over many months. As of the time of the hearing she had yet to provide responses to all discovery nor had she paid the monetary sanctions ordered by the court. [Cheng]’s bare denials of receipt of five mailings and notices to her address of record are not credible. What is credible is that she received the papers and chose not to respond as required. The in propria persona litigant is held to the same restrictive rules of procedure as an attorney. [Citation.] There is no basis for finding mistake, inadvertence, or excusable neglect. [Casas] has been prejudiced.”
Judgment was entered against Cheng on Casas’s cross-complaint on April 13, 2009.
Cheng timely appealed.
II. Discussion
A. The court acted within its discretion in imposing terminating sanctions
Cheng contends that the trial court abused its discretion in dismissing her complaint and striking her answer to Casas’s cross-complaint because the penalty was not appropriate to the dereliction and that the court should have considered a lesser sanction. We review the trial court’s order for abuse of discretion. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228 [trial court’s choice of discovery sanction subject to reversal only for manifest abuse exceeding the bounds of reason].) We also presume that the trial court was aware of its options in selecting a sanction. (Id. at p. 230.)
Cheng’s failure to respond to Casas’s discovery requests and her disobedience of the court’s September 2, 2008 order compelling responses to those requests were misuses of the discovery process. (§ 2023.010, subds. (d), (g).) Section 2023.030 is the statutory authority for discovery sanctions, and it provides the court with a list of sanctions it may impose for misuse of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method.” (§ 2023.030.) These authorized sanctions include monetary sanctions, issue sanctions, evidence sanctions, and terminating sanctions. (Id. subds. (a)-(e).)
Cheng’s argument ignores the fact that the court had already imposed lesser sanctions, consisting of monetary sanctions as well as deeming that Cheng admitted the matters set forth in Casas’s request for admissions, for her failure to respond. Her argument suggests that the court should have applied sanctions in a graduated fashion, but that is not the rule. “[T]here is no question that a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)
The record also supports a finding that a monetary sanction or a lesser sanction of issue preclusion or evidence preclusion would not have been effective in this case. Monetary sanctions had already been ordered by the court and had not been paid. Cheng was deemed to have admitted the matters set forth in Casas’s requests for admissions. “An important aspect of legitimate discovery from a defendant’s point of view is the ascertainment, in advance of trial, of the specific components of plaintiff’s case so that appropriate preparations can be made to meet them.” (Karz v. Karl (1982) 137 Cal.App.3d 637, 650.) Though the case had been pending for nearly two years, Cheng had not responded to any discovery relating to either her claims or the claims raised in the cross-complaint. By the time of the hearing on the motion for terminating sanctions, Cheng still had not responded to the discovery requests, had made no response to the motion and failed to appear at the hearing. Issue preclusion in these circumstances would have been tantamount to dismissal since the discovery requests covered every issue raised in the complaint and the cross-complaint. Likewise, Casas did not reap a windfall by the court’s order imposing terminating sanctions, because if the responses to the discovery requested had been entirely favorable to him, Casas would have prevailed in any case.
In her brief, Cheng repeatedly asserts that the court should not have issued terminating sanctions because “at the time of the hearing, ” she “was already in the process of responding to the discoveries [sic] and has submitted her partial responses the best she could at the time.” This is misleading. As discussed above, the first time that Cheng provided any discovery responses whatsoever was when she filed her reply papers in support of the motion for relief from default on December 12, 2008.
Cheng further argues that her violation of the court’s September 2, 2008 discovery order was not willful, and thus cannot provide a basis for imposing terminating sanctions. She claims that she had no knowledge of that order and thus cannot have willfully disobeyed it.
The party on whom the discovery was served has the burden of showing that his failure to respond was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.) Willfulness does not require wrongful intentions. A simple lack of diligence may be deemed willful where the party knew he had an obligation, had the ability to comply, and failed to do so. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 787.) The only evidence Cheng submitted to support her claim of ignorance of the court’s order was her own declaration. Opposed to that declaration was the clerk of the court’s proof of service indicating that the court’s order was served by mail on Cheng at her address of record on September 2, 2008. It is presumed that papers, properly addressed and served by mail on a party, are received. (Evid. Code, § 641.) The trial court was entitled to disbelieve Cheng’s unsupported, self-serving assertion that she did not receive the court’s order or any of the other papers relating to the discovery hearing. We find no reason to disagree with the trial court’s findings that Cheng’s refusal to respond was a willful act, not an inadvertent omission, and her refusal deprived Casas of the information he needed to prepare for trial.
Cheng also claims that the trial court abused its discretion in issuing terminating sanctions because Casas failed to meet and confer prior to bringing his motion for terminating sanctions. However, since the motion for terminating sanctions was brought due to Cheng’s failure to respond to the court’s September 2, 2008 discovery order, Casas was not required to meet and confer prior to bringing the motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)
Finally, Cheng complains that, at the hearing on terminating sanctions, the trial court appeared to deem her failure to oppose the motion or appear at the hearing as an admission, contrary to California Rules of Court, rule 3.1348(b), that the motion was meritorious and that sanctions should be granted. At the hearing, after Casas’s attorney submitted the matter, the trial court stated, “I will grant your motion. [¶] You were asking for terminating sanctions. There’s no opposition. So that is granted.” The trial court’s cursory disposition of the motion is not, in and of itself, indicative that it failed to exercise its discretion in this matter. The moving papers, which we must presume the trial court reviewed prior to the hearing, established that Cheng had failed to comply with the September 2, 2008 order directing her to provide discovery responses and pay sanctions. The trial court did not abuse its discretion in relying on those papers in granting the motion.
Cheng cites California Rules of Court, rule 3.1030(b) in her brief, but that rule was renumbered without change effective January 1, 2009. California Rules of Court, rule 3.1348(b) provides: “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”
B. Substantial evidence supports the denial of the motion to vacate
Cheng argues that because she was focused on the potential global settlement of the two actions and because she never received notice of the discovery motions or court orders, she was entitled to relief under section 473.
Pursuant to section 473, subdivision (b), a court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” It is within the trial court’s discretion to grant relief under this provision. (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.)
The evidence presented in connection with the motion to vacate established that Casas’s initial discovery requests were served on Cheng’s attorney of record, and that after her attorney withdrew, all subsequent papers were served by mail on Cheng at her address of record. Cheng never served a notice of change of address and Casas submitted an envelope he received from Cheng, postmarked November 12, 2008, which listed Cheng’s address of record as the return address. Against this evidence, Cheng submitted her declaration in which she stated that she never received the discovery motions or the court’s orders.
Furthermore, though Cheng contended that she was distracted by the ongoing settlement discussions she was having with Casas, the evidence established that there was no settlement of the civil proceeding. Even assuming that were true, the ongoing nature of settlement negotiations does not excuse a party from responding to properly served discovery requests, let alone the court’s orders. (See Turley v. Turley (1967) 254 Cal.App.2d 169, 173 [negotiation of potential settlement does not excuse failure to proceed with due diligence in filing of pleadings, absent contrary understanding].)
On balance, there was substantial evidence to support the trial court’s findings that Cheng was not credible and that she did, in fact, receive the discovery motions and orders, but chose to ignore them. She failed to establish that the court’s orders were entered against her due to her mistake, inadvertence or excusable neglect, and the trial court did not abuse its discretion in denying her motion to vacate those orders.
On this record we cannot say that the trial court exceeded the bounds of reason in dismissing the complaint against Casas and striking Cheng’s answer to his cross-complaint.
C. Attorney fees
Casas requests an award of attorney fees pursuant to Civil Code section 1708.6, subdivision (b). Such a request is properly directed to the trial court for determination upon issuance of the remittitur.
III. Disposition
The order denying the motion to set aside the September 2, 2008 and October 24, 2008 orders pursuant to Code of Civil Protection section 473 is affirmed. The judgment is affirmed.
Casas shall recover his costs on appeal.
WE CONCUR: Rushing, P.J., Duffy, J.