Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. LC075992 Richard Adler, Judge.
Gennady Dolzhenko, in pro. per., for Plaintiff and Appellant.
Law Offices of Martin J. Trupiano and Martin J. Trupiano for Defendant and Respondent.
EPSTEIN, P.J.
Gennady Dolzhenko appeals from three awards of discovery sanctions. We find no basis for reversal and affirm.
FACTUAL AND PROCEDURAL SUMMARY
This is an action for national origin discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 20003 et seq. (Title VII)). In this appeal, we address only discovery sanctions. In a companion appeal, Dolzhenko v. Valley Temps, Inc. (July 26, 2010, B209129 [nonpub. opn.]), we address an award of attorney fees to respondent Valley Temps, Inc. after it prevailed on summary judgment. Appellant does not challenge the merits of the summary judgment.
Appellant applied for a temporary job as a factory assembler with respondent Valley Temps, an employment services business principally serving manufacturing businesses. He scored poorly on the screening examinations administered by respondent, including a shop safety test, and in a personal interview in which he was found not to be fluent in English. Based on these results, he was determined not to be a good candidate for any electronics job opening then available. After communications by appellant which respondent considered rude, condescending, and threatening, appellant’s application was closed. Appellant brought an action alleging a single cause of action for national origin discrimination under Title VII. Respondent answered and commenced discovery.
This appeal concerns sanctions imposed on appellant for failing to respond to form interrogatories and a request for production of documents propounded by respondent. Appellant objected on the ground of relevance to 19 of 56 form interrogatories propounded by respondent. Similarly, he refused to produce documents requested in 25 of 26 of respondent’s requests for production of documents based on various objections. On June 26, 2007, the trial court granted respondent’s motion to compel as to both sets of discovery and imposed $600 in sanctions against appellant based on its finding that appellant had not shown substantial justification or other circumstances to make the award of sanctions unjust under Code of Civil Procedure sections 2023.030, 2030.300, 2031.310.
Statutory references are to the Code of Civil Procedure unless otherwise indicated.
On August 10, 2007, the trial court denied appellant’s motion for reconsideration of the June 26 order on the ground that appellant had not shown new or different facts, circumstances, or law as required by section 1008. Appellant was ordered to pay an additional $100 in sanctions to the Los Angeles Superior Court (§ 1008, subd. (d)), stayed until the last day of trial.
The other sanctions order at issue in this appeal stems from discovery propounded by appellant. Appellant served a first set of special interrogatories and a first request for production of documents on respondent. Although respondent posed objections to many of these requests, appellant neither sought to meet and confer to resolve the dispute nor moved to compel further responses. Instead, he served a second set of interrogatories and request for production of documents which are substantially similar to the first. Respondent objected that appellant had attempted to circumvent the 45-day deadline to move to compel further responses to the first set of discovery because the second set was substantially identical to the first.
Appellant moved to compel further responses to the second set of discovery requests. On October 17, 2007, the trial court found that appellant’s second set of discovery requests was similar but not identical to the first. It noted that appellant had failed to respond to authority cited by respondent holding that a party who misses the 45-day deadline to bring a motion to compel may not circumvent that requirement by serving a later demand for the same discovery. (Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490 (Career Colleges).) It found that appellant had failed to provide any reason why he should be excused from this rule.
Despite finding that appellant had created lengthy delays in bringing discovery motions and the motions to compel, the trial court continued the motions to allow appellant to file a motion under section 473 setting forth reasons why he should be relieved of his failure to comply with the 45-day deadline. In addition, respondent was given leave to seek a protective order in the event appellant’s motions to compel were granted.
The trial court denied appellant’s motion for relief under section 473 and his two motions to compel on November 2, 2007. Sanctions of $500, imposed against appellant under sections 2023.030, 2030.300, and 2031.310, were stayed pending resolution of the case. Appellant was given leave to serve discovery, so long as it did not seek the personal files of respondent’s employees. This appeal followed.
DISCUSSION
I
We review an order imposing discovery sanctions for abuse of discretion. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law. ‘“The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]” [Citations.]’ (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.)” (Ibid.)
II
Appellant argues the trial court erred in imposing sanctions against him on June 26, 2007 because he never received a letter from counsel for respondent attempting to resolve the issues informally. “Under Evidence Code section 641, ‘[a] letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.’” (Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1486.) The trial court found that the letter from counsel was properly addressed to the address shown on appellant’s complaint and discovery responses. This finding is supported by the record. The burden was on appellant to demonstrate that the meet and confer letter had not been mailed. Appellant failed to carry this burden.
In a related argument, appellant charges former counsel for respondent with improper, hostile conduct, and asserts that no reasonable, good faith effort was made to resolve the discovery dispute. Code of Civil Procedure section 2016.040 provides: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”
“‘A determination of whether an attempt at informal resolution is adequate... involves the exercise of discretion. The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances.’ (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) ‘A trial judge’s perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed.’ (Ibid.)” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.)
Here, counsel for respondent sent a detailed eight-page letter addressing the perceived inadequacies of appellant’s responses. Appellant was invited to contact counsel for respondent if he wished to further discuss the issues. He did not respond to the letter, and as we have discussed, claimed he had not received it although it was properly addressed. The trial court found: “Contrary to Plaintiff’s argument, a good faith attempt was made prior to the filing of the instant motions[, ]” citing the letter sent by counsel for respondent. Before the meet and confer letter was sent, a major dispute arose between the parties over an attempt by an agent for appellant to serve additional responses at the law office of former counsel for respondent. Appellant raised this dispute in his opposition to the motion to compel, accused counsel for respondent of lying about the incident, and said he would prefer never to see that attorney. The court was in a position to consider this breakdown in the relationship between appellant and counsel for respondent and the other relevant factors and found an adequate attempt to resolve the matter. We find no basis to disturb this determination under these circumstances.
III
Appellant cites alleged misconduct by a former attorney for respondent. This argument does not provide a basis for reversal of the sanctions order. The issues before the court in the discovery disputes were whether appellant properly responded to discovery propounded by respondent, and whether he violated the rule that his motions to compel be brought within 45 days of the response filed by respondent.
IV
Appellant challenges the relevance of certain of the form interrogatories propounded by respondent, arguing that they are more suited to cases involving motor vehicles, property damage, or personal injury.
Some of these interrogatories sought background information about appellant and were likely to lead to the discovery of admissible evidence, as the trial court found. For example, 2.3 and 2.4 asked about drivers or other licenses; and 2.12 asked about any disability, mental or physical, that might have contributed to the dispute between the parties. Interrogatories 8.2, 8.4, and 8.5 sought information relevant to any damage claim for loss of wages. Appellant’s medical history and injuries were the subject of interrogatories 10.1, 10.2, and 10.3. These also related to discovery about his damages claim.
We find merit in appellant’s argument that interrogatories 2.11 (was appellant acting as an agent); 7.1-7.3 (property damage); 12.7 (inspection of scene); and 13.1-13.2 (surveillance of anyone involved) do not seem calculated to lead to the discovery of admissible evidence in this employment discrimination action. But the vast majority of the interrogatories and requests for production to which appellant objected were within the proper scope of discovery. Appellant’s responses to those interrogatories and requests were obstructive and sanctionable. In addition, the trial court reduced respondent’s request for $3,012.50 in sanctions to $600. We infer that it took into account the requests which were beyond the scope of permissible discovery in making that order.
In both his opening and reply briefs, appellant argues that the sanctions were improper under rule 11 of the Federal Rules of Civil Procedure. That rule has no application in this state matter involving discovery sanctions.
V
Appellant challenges the court’s order imposing sanctions of $100 in denying his motion for reconsideration of the first sanctions award.
In his motion for reconsideration, appellant asserted the following new evidence: 1) he lives in an apartment building with mail delivery problems; 2) the meet and confer letter was never sent to him; and 3) it is unfair and a hardship to impose sanctions for failing to respond to interrogatories not calculated to lead to the discovery of admissible evidence. He submitted a declaration in support of these contentions.
The trial court ruled that appellant had failed to present new or different facts, circumstances, or law as a basis for reconsideration as required by section 1008. The court found: “Rather, Plaintiff continues to assert in his moving papers that the Court improperly granted the motion to compel further [answers] and that his objections were proper. This is not a proper basis of a reconsideration motion.”
In his opposition to the motion to compel, appellant raised the objection that some of the discovery sought was beyond the scope of proper discovery. This was not a new ground for reconsideration. Appellant’s declaration in support of the motion for reconsideration stated that he lived in an apartment building with very bad security and that he “has a certain problem with mail delivery. Mail is very often delivered to the wrong mail boxes.” In addition, appellant claimed financial hardship, pointing out that he had obtained a fee waiver order from the trial court.
We review the denial of a motion for reconsideration under section 1008 for abuse of discretion. (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 42.) As the trial court found, in part appellant’s motion for reconsideration merely restated arguments made previously in opposition to the motion to compel. Appellant’s showing regarding the mail delivery problems was vague and not sufficient to overcome the presumption that the meet and confer letter had been sent. We infer the trial court took appellant’s financial condition into consideration in reducing the sanctions award to $600, reduced from a request for over $3,000. In addition, the trial court took the extra step of staying the bulk of the sanction award until the resolution of the case. On this record, we find no abuse of discretion.
VI
Appellant also appeals from sanctions imposed when he served a second set of discovery substantially similar to his first set although he had failed to move to compel further answers to the first. In opposition, respondent characterized this as an attempt to circumvent the 45-day deadline in the discovery statutes for bringing motions to compel. The issue is presented as an appeal from appellant’s motion for relief from the 45-day deadline under section 473. In that motion, appellant asserted that he served a second set of discovery requests rather than moving to compel further responses to the first because of a reasonable mistake of law.
In his supporting declaration, appellant said he was not sure whether he could move to compel further responses to the first set of discovery because they included subparts and were compound. He explained: “I was talking to an attorney in the law library in downtown who told me that he has experience in the employment discrimination law. That attorney told me that sanctions against me will be imposed if I will file Motions to Compel to Special Interrogatories having subparts[, ] plaintiff can amend his interrogatories and ask them again since defendant never provided any responsive information for these interrogatories.” Appellant declared that this advice “sounded reasonable” in light of section 2030.290, subdivision (c) which provides that sanctions shall be imposed on any party unsuccessfully moving to compel further answers to interrogatories. He decided to follow the advice of the attorney at the law library and served amended special interrogatories and an amended demand for production of documents because he did not find any statutes that prohibited amendment of a discovery request.
On appeal, appellant characterizes the propriety of his second, similar discovery requests as an issue of first impression, which would support relief under section 473 because the law in the area is unsettled. In denying appellant’s section 473 motion, the trial court relied on Career Colleges, supra, 207 Cal.App.3d 490, which held that a party cannot avoid the 45-day deadline to bring a motion to compel by filing a second discovery request repeating the first request. (Id. at p. 494.) The court ruled that the motions to compel were time-barred.
“[S]ection 473, subdivision (b), provides in pertinent part: ‘The 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 clearly established that “[a] motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse.” [Citation.] The discretion conferred upon the trial court, however, is not a “‘“capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.”’ [Citations.]” [Citation.]’ (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1180.)” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266.)
“Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law....’ [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) “‘“[A] mistake as to law does not require relief from default as a matter of law. [Citation.] The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.] Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief. [Citations.]”’ (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238.)” (Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 683-684.)
Contrary to appellant’s repeated assertion, when he served his second set of discovery requests, it was settled that the 45-day deadline to compel could not be circumvented by serving a new request for the same discovery. In Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, we cited Career Colleges, supra, 207 Cal.App.3d 490, in holding that a court has authority only to deny a motion to compel brought beyond the 45-day limitation because failure to timely move to compel within the specified period constitutes a waiver of any right to compel. (Sexton, at p. 1410.) In 1989, the court in Career Colleges addressed the issue as a question of first impression, and held that a party may not reset the time limits to bring a motion to compel by making the same request again. (Id. at pp. 493-494.)
Appellant’s second set of discovery requests was substantially identical to his first. The same information was sought but the second set did not include subparts. Appellant did not bring a motion to compel further responses to the first set within the 45-day deadline. The trial court was therefore required to deny his motion to compel responses to the second set of discovery because they constituted an improper effort by appellant to circumvent the discovery statutes. The law in this area was neither complex nor debatable, and relief under section 473 thus was not warranted.
Alternatively, appellant argues that it was not equitable of the trial court to allow respondent to seek a protective order when he was ordered to seek relief from the deadlines for a motion to compel under section 473. He complains that the application for protective order was not timely and that he was due fees because of this default. We disagree with this argument. We have concluded that the trial court did not abuse its discretion in denying appellant’s motion under section 473. The equities of the trial court’s treatment of respondent’s protective order do not change that conclusion.
Appellant also argues that his right to a full trial on the merits outweighed respondent’s right to be free of onerous discovery. “The discovery act vests the trial court with discretion to grant a protective order that limits the scope of discovery if the court determines the ‘burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.’ [Citation.]” (Pratt v. Union Pacific Railroad Co. (2008) 168 Cal.App.4th 165, 181.) The limited protective order issued in this case prohibited discovery only into personnel files of employees maintained by respondent. In light of the issues presented in this case, that order was not an abuse of the trial court’s discretion.
Without citing supporting authority, appellant also argues that the protective order violated his rights under the federal and state constitutional guarantees of free speech. We treat a point not supported with citations to authority as forfeited and do not address it. (Vanguard Car Rental USA, Inc. v. County of San Mateo (2010) 181 Cal.App.4th 1316, 1332, fn. 13.)
VII
We addressed respondent’s request for costs and fees related to the failure of appellant to provide a copy of the record on appeal in the companion case, Dolzhenko v. Valley Temps, Inc., supra, B209129.
DISPOSITION
The orders are affirmed. Respondent is to have its costs on appeal.
We concur: MANELLA, J.SUZUKAWA, J.