Opinion
B162278.
10-16-2003
CALVIN GREENE, Plaintiff and Appellant, v. OFFICER ROSALES et al., Defendants and Respondents.
Calvin Greene, in pro. per., for Plaintiff and Appellant. Forgey & Hurrell, Thomas C. Hurrell, and Melinda Hedin, for Defendants and Respondents.
Plaintiff, Calvin Greene, appeals from the September 10, 2002, dismissal of his amended assault, battery, negligence, and intentional emotional distress complaint. Plaintiff argues: defendants application for an order shortening time for notice of hearing on the terminating sanction motion should have been denied; a terminating sanction was erroneously entered; he was not afforded an adequate opportunity to review the transcript of his second deposition; the trial court erroneously denied his May 28, 2002, motion to compel interrogatory answers; his motion to transfer the case to the South Central District of Los Angeles Superior Court should have been granted; and a proper substitution of counsel form was not filed. We disagree and affirm the judgment.
On July 27, 2001, plaintiff filed suit against defendants, Officer Rosales, the Los Angeles Police Department, and the County of Los Angeles (the county) for assault, battery, negligence, and intentional emotional distress infliction. An amended complaint was filed on December 4, 2001. An answer was filed on behalf of Officer Rosales and the county.
On February 27, 2002, plaintiffs deposition was taken. Plaintiff refused to answer questions concerning: lost income; prior employment; present source of income; whether he was receiving disability payments; prior complaints against the county; prior lawsuits; prior settlements of lawsuits; prior dismissal of cases; prior surgeries; physician visits; and prior back injuries. On April 19, 2002, defendants filed a motion to compel answers to the aforementioned deposition questions and for monetary sanctions. On May 14, 2002, defendants motion to compel answers to the aforementioned deposition questions and for monetary sanctions was granted.
Plaintiffs deposition was resumed on August 5, 2002. At the resumed deposition, plaintiff refused to comply with the May 14, 2002, order to answer questions. On August 20, 2002, defendants filed a terminating sanction motion. The trial court granted defendants application for an order shortening time for notice of hearing on the terminating sanction motion because of the pending September 17, 2002, trial date. Plaintiff was given 21 days notice of the motion. On September 10, 2002, the terminating sanctions motion was granted. On September 10, 2002, judgment was entered in defendants favor.
First, there is no merit to plaintiffs contention that defendants order shortening time request should have been denied. We review this contention for an abuse of discretion. (Cal. Rules of Court, rule 379; Errecas v. Superior Court (1993) 19 Cal.App.4th 1475, 1494.) Plaintiffs second deposition, which was occasioned solely by his unjustified failure to answer questions at the first session, was held on August 5, 2002. The first available date for a hearing on the terminating sanction motion was on October 1, 2002. The case was set for trial on September 17, 2002. The only way a hearing date on the terminating sanction motion prior to trial could be secured was if an order shortening time was issued by the trial court. Defendant was given 21 days notice of hearing on the terminating sanction motion. No abuse of discretion occurred.
Second, the trial court did not abuse its discretion in dismissing the case. The trial court had the authority to order plaintiff to submit to a second deposition given his refusal to answer questions at the February 27, 2002, deposition. (Code Civ. Proc., § 2025, subd. (o); Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1106.) Further, a trial court has the power to impose a terminating sanction when a party refuses to comply with a court order to answer deposition questions. (Code Civ. Proc., § 2025, subd. (o); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 892; Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398-1399.) We examine a terminating sanction order for an abuse of discretion. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388-389; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244.) No abuse of discretion occurred. Plaintiff was ordered to answer questions directly pertinent to his personal injury claims. He deliberately refused to comply with the trial courts May 14, 2002, order to answer questions which were reasonably calculated to lead to the disclosure of admissible evidence.
Third, no irregularity occurred in connection with the deposition transcript. Plaintiff had adequate time to review the transcript. Pursuant to Code of Civil Procedure section 2025, subdivision (q)(1), the August 5, 2002, transcript was deemed approved by the time of the September 10, 2002, terminating sanction motion hearing. (Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1248; see People v. Post (2001) 94 Cal.App.4th 467, 478.) Finally, an inadequate prejudice showing has been made in this regard to permit reversal. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
Fourth, plaintiff is not entitled to reversal because his April 26, 2002, motion to compel further interrogatory answers was denied. On April 26, 2002, plaintiff filed a motion to compel interrogatory answers. Defendants opposition to plaintiffs motion indicated that the answers were in fact timely served prior to the hearing on the motion to compel answers. The trial court did not abuse its discretion in denying plaintiffs April 26, 2002, motion to compel in the face of an under oath showing the interrogatories were in fact timely answered. (See Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1426; James 3 Corp. v. Truck Ins. Exchange (2001) 91 Cal.App.4th 1093, 1110.)
Fifth, there is no merit to plaintiffs contention that the terminating sanction order must be reversed because his oral request to transfer the case to another superior court district was denied. As defendants correctly note, plaintiff never made a motion to transfer the case to another superior court district. Rather, plaintiff merely advised the trial court that he was going to file a motion to that effect. The failure to actually have made the transfer motion waives the issue. (Newman v. County of Sonoma (1961) 56 Cal.2d 625, 627-628; Ventura Unified School Dist. v. Superior Court (2001) 92 Cal.App.4th 811, 815.)
Sixth, plaintiff argues defendants failed to comply with Code of Civil Procedure sections 284 and 285 because no written substitution of counsel was filed. This contention is meritless. When the complaint was filed, defendants were represented by the law firm of Hillsinger, Forgery, Hurrell & Star. On August 20, 2002, on the same day the terminating sanction motion was filed, the law firm of Forgery & Hurrell filed a written substitution of counsel on defendants behalf. No error occurred in this regard.
The judgment is affirmed. Defendants, the County of Los Angeles, the Los Angeles Police Department, and Officer Rosales, shall each separately recover their costs incurred on appeal from plaintiff, Calvin Greene.
GRIGNON, J. and MOSK, J., We concur.