Opinion
B317722
04-26-2024
KATHLEEN A. KENNE, Plaintiff and Appellant, v. COMMUNITY CORPORATION OF SANTA MONICA, INC., et al., Defendants and Respondents.
Kathleen A. Kenne, in pro. per., for Plaintiff and Appellant. Daniels, Fine, Israel, Schonbuch &Lebovits and Bernadette Castillo Brouses for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SC128551, Craig D. Karlan, Judge.
Kathleen A. Kenne, in pro. per., for Plaintiff and Appellant.
Daniels, Fine, Israel, Schonbuch &Lebovits and Bernadette Castillo Brouses for Defendants and Respondents.
EDMON, P. J.
Plaintiff Kathleen A. Kenne appeals from a judgment entered in favor of defendants after the trial court granted defendants' motion for terminating sanctions. Kenne asserts the court erred in denying her peremptory challenge as untimely, in granting the terminating sanctions and in other discovery rulings, which ultimately contributed to the court's decision to dismiss her case. We affirm on all grounds.
FACTUAL AND PROCEDURAL BACKGROUND
We note at the outset that Kenne failed to comply with California Rules of Court, rule 8.204, as her brief does not "[p]rovide a summary of the significant facts . . . in the record." (Cal. Rules of Court, rule 8.204 (a)(2)(C).) Kenne's "STATEMENT OF FACTS" section of her opening brief discusses events leading up to but does not include the discovery disputes that are central to the appeal. To make matters worse, despite designating 28 volumes of clerk's and supplemental clerk's transcripts on appeal (8,299 pages in total), Kenne does not provide volume numbers in any of her record citations in violation of rule 8.204(a)(1)(C). Defendants likewise fail to cite the volumes and only provide page numbers. Despite these shortcomings, we have proceeded to review this appeal and provide the following synopsis of events essential to Kenne's contentions.
All subsequent rule citations are to the California Rules of Court.
I. Plaintiff's Lawsuit
In 1993, Community Corporation of Santa Monica (CCSM) began leasing a single unit in a multi-unit Santa Monica residential building to Kenne. In November 2017, CCSM initiated unlawful detainer proceedings against Kenne.
In 2019, Kenne and CCSM settled the unlawful detainer actions.
A month later, Kenne filed this lawsuit against CCSM and five of its officers and employees-Tara Barauskas, Robert Connell, Durinda Abraham, Kyong Chang, and Alan Wittert. The 109-page complaint asserted 14 causes of action: breach of the lease, breach of implied covenant of good faith and fair dealing, breach of implied covenant of quiet enjoyment, retaliatory eviction, fraudulent concealment, trespass, nuisance, invasion of privacy, violation of local ordinances, unfair business practices, intentional infliction of emotional distress, civil conspiracy, accounting of rents, and injunctive relief. Kenne alleged that defendants conspired to evict Kenne and retaliated against her when she complained, protested, and asked for information from CCSM. Kenne prayed for economic and noneconomic damages, specific performance, exemplary and punitive damages, an accounting of rents, prejudgment interest, "[e]quitable lien, constructive trust, and/or a resulting trust on all corporate assets based on an accounting of rents" plus ten percent interest, injunctive relief to temporarily or permanently enjoin the unlawful detainer actions filed by CCSM against Kenne, and attorney fees and costs. Kenne, who is an attorney, represented herself throughout the litigation.
By December 2017, the case was assigned for all purposes to Judge Craig D. Karlan. Kenne appeared and argued before Judge Karlan twice in January 2018, and again in April and May 2018. Subsequently, in May 2018, Kenne filed a peremptory challenge to Judge Karlan. The court denied the peremptory challenge as untimely.
II. Discovery Disputes
Discovery disputes plagued the litigation. Although the timelines for the various discovery disputes overlap, we break the discovery disputes into three categories for ease of reading: CCSM's discovery requests and interrogatories, Kenne's discovery requests and interrogatories, and Kenne's deposition.
a. CCSM's Discovery Requests and Interrogatories
In the summer of 2019, CCSM served Kenne interrogatories, requests for admission, and demands for production of documents. Kenne failed to timely respond to the written discovery, and then filed a motion for a protective order, arguing that defendants had served an excessive amount of discovery, which was compound and duplicative. Several days later, CCSM moved to compel responses to the written discovery.
In February 2020, the court heard argument on the dueling motion for protective order and motions to compel. The trial court then issued an order that denied Kenne's motion for a protective order and required Kenne to provide discovery responses compliant with the Code of Civil Procedure (code-compliant responses) to CCSM's discovery, noting the specific interrogatories and requests that CCSM agreed to strike as duplicative. The court pointed out that the voluminous discovery requests were proportionate to the length of plaintiff's 109-page complaint. The court stated: "such a large complaint, riddled with compound paragraphs, necessitates such a large number of discovery requests. Though the Court is cognizant that responding to contention related discovery with respect to a 354-paragraph complaint will likely be time-consuming (and may contain some repetition), this is the result of Plaintiff's decision to file such a lengthy complaint." The court limited plaintiff's objections to work product. Due to striking some of the interrogatories and requests as duplicative, the court denied CCSM's request for monetary sanctions.
We grant Kenne's request for judicial notice of the February 5, 2020 transcript. (See Evid. Code, § 452, subd. (d) [judicial notice may be taken of court records].) We do not take judicial notice of the remaining exhibits in Kenne's request for judicial notice as they are not relevant to our analysis.
When Kenne did serve her discovery responses, some were incomplete and evasive. For example, Kenne refused to provide her place of employment, her monthly income, her income and earnings history, her treating physician's identity, the name and costs of the sleep medication she claimed to have taken, and the names and phone numbers of her supporting witnesses. Kenne also included objections unrelated to work product. After unsuccessful meet and confer efforts, CCSM filed a motion to compel further responses to certain form interrogatories and requested $2,702.50 in sanctions. CCSM explained that Kenne's incomplete responses were particularly relevant to damages given that Kenne was claiming lost earnings and emotional distress. Kenne opposed the motion, arguing in part that it was untimely.
In February 2021, the trial court granted CCSM's motion to compel further responses. The court stated CCSM's "motion was timely filed, as the responses were served by mail on April 20, 2020, and the motion was filed on June 8, 2020, which was within the 45 days plus 5 calendar days deadline to serve such a motion." The court found that Kenne's responses were inadequate, stating that they "violate the Court's prior order limiting objections to work-product. In addition, [Kenne] failed to respond to certain aspects of the interrogatories, and when she did respond, she provided insufficient responses based on objections other than work product." The trial court ordered Kenne to provide code-compliant supplemental responses and sanctioned her $2,702.50 to compensate CCSM for attorney fees incurred in bringing the motion to compel.
b. Kenne's Discovery Requests and Interrogatories
In November 2019, Kenne served her first set of interrogatories, requests for admission, and requests for production of documents on defendants. In late December 2019, defendants served timely objections. A month later, in January 2020, they served substantive responses and documents. On June 4, 2020, CCSM served further responses to Form Interrogatory 12.1 and an additional 950 pages of documents.
On June 4, 2020, Kenne filed motions to compel responses from defendants to Kenne's first set of form interrogatories, special interrogatories, requests for admission, and requests for production of documents. In her motion and separate statement, Kenne quoted defendants' December objections but omitted defendants' January and June substantive responses to her discovery. Defendants opposed the motions as untimely, noncompliant with the rules of court, and unmeritorious because defendants' discovery responses were complete and verified.
On February 5, 2020, Kenne filed these same motions in an abbreviated format with an "Ex Parte Application Requesting to File a Concise Outline in Lieu of Separate Statements." The ex parte request indicated Kenne wanted permission "to file a concise outline of her discovery and defendant's hundreds of the same identical unverified 'boilerplate' objections in lieu of 14 separate statements." At the February 2020 hearing, the court denied Kenne's request to file an outline rather than separate statements.
In September 2020, the trial court denied Kenne's motions to compel as moot because defendants had already provided responses.
c. Kenne's Deposition
In early August 2019, defendants noticed Kenne's deposition for August 29, 2019, requesting she produce the same documents at the deposition that were identified in the demands for production. Because Kenne failed to respond to defendants' written discovery that was due prior to the deposition, defendants rescheduled Kenne's deposition for October 9, 2019. Kenne did not appear on October 9, 2019, as documented by the court reporter's certificate of non-appearance.
Weeks later, defendants filed a motion to compel Kenne to appear, testify, and produce documents at her deposition. In September 2020, the court granted the motion and ordered Kenne to appear for deposition remotely on October 2, 2020, at 9:00 a.m., or any other date and time agreed upon in writing by all parties. Kenne served notice via email of the trial court's September 2020 order.
Kenne subsequently refused to appear remotely on October 2, 2020, asserting defendants had not provided sufficient statutory notice of the deposition. Kenne also refused to discuss her deposition with defense counsel unless written discovery issues unrelated to the deposition were resolved.
III. Motion for Terminating Sanctions
In November 2020, defendants filed their motion for terminating sanctions, or alternatively, for another order compelling Kenne to appear, testify, and produce documents at deposition. Defendants simultaneously moved for a protective order to stay discovery until Kenne complied with the court's September 2020 order to appear, testify, and produce documents at deposition. Due to the court's busy calendar, the motions were scheduled to be heard in June 2021.
In January 2021, Kenne filed a motion for an order appointing a discovery referee. In February 2021, Kenne served each of the five individual defendants with requests for production of documents, collectively totaling 105 requests. In response, defendants filed an ex parte application requesting an order staying discovery by Kenne until the court could hear the pending motions. After hearing argument from the parties, the court stayed discovery while the motions were pending.
Also in late September 2020, Kenne sent defendants more than 600 additional interrogatories, requests for admission, and requests for production of documents.
On June 30, 2021, the court heard argument on defendants' motion for terminating sanctions, or in the alternative, for an order to compel Kenne's deposition. The court granted the motion in part, ordering Kenne to appear in person and testify at defense counsel's office on July 30, 2021 and produce documents at the deposition. The court admonished Kenne to "fully participate in her deposition in good faith" and warned that Kenne "will be subject to terminating sanctions in the form of dismissal of the present action" if she did not obey. The court continued the hearing on the motion for terminating sanctions to August, and granted defendants' motion for a protective order to stay discovery unrelated to Kenne's deposition until further order of the court. The court also continued the hearing on Kenne's motion for appointment of a discovery referee.
When Kenne appeared for her video-taped deposition a month later, she responded evasively to questions and argued with defense counsel. In addition, Kenne would not reveal whether she had produced all of the documents requested in the deposition notice.
We grant defendants' motion to augment the record with a copy of the July 30, 2021 deposition transcript, which was lodged with the trial court. (Rule 8.155(a)(1) ["At any time, on motion of a party . . ., the reviewing court may order the record augmented to include: [¶] . . . Any document filed or lodged in the case in superior court."].)
After the deposition, defendants filed a supplemental brief asserting Kenne did not fully participate in her deposition in good faith as ordered by the court because she refused to answer questions, argued with counsel, provided tangential and nonresponsive commentary, and failed to produce responsive documents after asserting the same objections the court had previously rejected. With the supplement brief, defendants filed a copy of the July 30, 2021 deposition transcript. In August 2021, the court continued the hearing on terminating sanctions to provide Kenne time to submit supplemental briefing to respond to the additional evidence submitted by defendants.
In September 2021, the court heard oral argument on the motion for terminating sanctions. The court took the motion under submission and ordered defendants to submit the video recording of Kenne's deposition and the reporter's transcript of the September 2021 hearing. Defendants complied.
IV. Order Granting Terminating Sanctions
In October 2021, the court granted the motion for terminating sanctions but also denied defendants' request for monetary sanctions. The court issued a nine-page order detailing Kenne's "unwillingness to participate in discovery in good faith." The court observed that Kenne disobeyed the court's February 2020 order that she provide code-compliant discovery responses and limit her objections to work-product, and its September 2020 order to sit for her deposition remotely. The court then described plaintiff's uncooperative behavior at her August 2021 deposition.
At this point in the proceedings, there were many other discovery motions pending that we did not discuss above: seven motions from Kenne and ten motions from defendants. The terminating sanctions order mooted these pending motions.
The court said that examples of Kenne's failure to participate in her deposition in good faith "included responding to questions with vague answers because [Kenne] believed the question itself was vague, asserting objections that had previously been overruled by the court when asked to produce documents, taking issue with prior court orders, refusing to take a comfort break, refusing to name her physician after alleging she had suffered severe emotional distress, refusing to provide her current address, and responding to questions in a purposely obtrusive manner, i.e., laughing at counsel's questions and responding to a question regarding injuries sustained with a statement that 'the defendants did not break my arm.' "
The trial court explained that its June 30, 2021 minute order "made clear that Plaintiff was to appear and produce all categories of documents not expressly stricken by the Court in its February 13, 2020, minute order. Nevertheless, at Plaintiff's deposition, as reflected in just under thirty pages of deposition testimony, defense counsel was unable to ascertain whether Plaintiff provided all the documents requested by Defendants and ordered to be produced by the Court, as no cogent answer was ever obtained." The court continued: "Instead of providing code-compliant responses pursuant to Code of Civil Procedure section 2031.230, relating to the document demands, Plaintiff stated at her deposition, 'I cannot blanketly say with 274 requests that are compound, convoluted, disjunctive, have typos, misstate the allegations in the complaint, that I've responded because some of them have been stricken. Some are objectionable. Some are privileged. Some are work product protected.' . . . Later in the deposition, Plaintiff stated, '[a]nd for the record, I'm not required to go through your notice of 274 documents, many of which have been stricken and already produced and figure out which ones are left to do your work for you.' . . . Simply put, Plaintiff disregarded the Court's order that she produce documents at her deposition. Plaintiff's failure to properly produce documents as ordered by the Court by itself constitutes a sufficient basis for the Court to terminate the action, but Plaintiff's disregard for the discovery process did not end there."
The court then highlighted how Kenne refused to answer questions about "two primary categories of damages asserted by Plaintiff in her complaint[:] (1) severe emotional distress and (2) loss of earnings/income capacity and litigation costs." The court summarized: "Put simply, Plaintiff's conduct in her deposition, and throughout the course of this litigation, demonstrates she has no intention of providing Defendants with the information to which they are legally entitled to defend against her claims, nor will she comply with court orders requiring her to do so." The court also took "care to note that Plaintiff is a licensed attorney who is well aware of how a deposition should be conducted and the decorum that is expected of parties and attorneys during litigation. The transcript of Plaintiff's deposition shows Plaintiff has no intention of complying with such rules, in addition to willfully ignoring court orders requiring her to participate in good faith."
In November 2021, the court entered judgment of dismissal in favor of defendants.
DISCUSSION
Kenne ultimately challenges the trial court's order granting terminating sanctions. In doing so, she asserts the trial court erred in deciding various discovery motions in favor of defendants, and that these rulings contributed to the court's decision to grant terminating sanctions. She also contends the court erred in denying her peremptory challenge and violated her due process rights. We begin our analysis with an overview of California discovery law as it frames the issues presented by Kenne.
I. Discovery Law
"The Civil Discovery Act provides litigants with the right to broad discovery. In general, 'any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' ([Code Civ. Proc.,] § 2017.010.) 'In establishing the statutory methods of obtaining discovery, it was the intent of the Legislature that discovery be allowed whenever consistent with justice and public policy. [Citation.] The statutory provisions must be liberally construed in favor of discovery and the courts must not extend the statutory limitations upon discovery beyond the limits expressed by the Legislature.' " (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (Sinaiko).) The trial court may intervene in the discovery process when a party" 'fails to serve a timely response.'" (Id. at p. 403.)
All subsequent undesignated statutory references are to the Code of Civil Procedure.
"When discovery disputes arise as to interrogatories, [requests for admission,] and document requests, the trial court may intervene in the discovery process in three circumstances. First, a responding party may move for a protective order to challenge a discovery demand. To prevail, it bears the burden (§ 2019.030, subd. (b)) to demonstrate that the 'discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive' (§ 2019.030, subd. (a)(1)), or that the 'selected method of discovery is unduly burdensome or expensive.' (§ 2019.030, subd. (a)(2); see § 2030.090 [motion for protective order on interrogatories], 2031.060 [motion for protective order on inspection demands][, [2033.080 [motion for protective order on requests for admission]].)" (Sinaiko, supra, 148 Cal.App.4th at p. 402.)
"Second, if a propounding party is not satisfied with the response served by a responding party, the propounding party may move the court to compel further responses. (§§ 2030.300 [interrogatories], 2031.310 [inspection demands][, [2033.2090 [requests for admission]].) The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general. (§§ 2030.300, subd. (a)(1)-(3), 2031.310, subd. (a)(1)-(3).) The propounding party must bring its motion to compel further responses within 45 days of the service of the response (§§ 2030.300, subd. (c), § 2031.310, subd. (c)), and must demonstrate that it complied with its obligation to 'meet and confer.' (§§ 2016.040; 2030.300, subd. (b), 2031.310, subd. (b)(2).) (Also required is a separate statement as specified in Cal. Rules of Court, rule 3.1020.) In addition, a party moving to compel further responses to an inspection demand must establish 'good cause justifying the discovery sought by the inspection demand.' (§ 2031.310, subd. (b)(1).)" (Sinaiko, supra, 148 Cal.App.4th at p. 403.)
"Third, . . . the trial court may intervene when a party 'fails to serve a timely response.' (§§ 2030.290 [interrogatories], 2031.300 [inspection demands][, [2033.280 [requests for admission]].) A party that fails to serve a timely response to the discovery request waives 'any objection' to the request, 'including one based on privilege' or the protection of attorney work product. (§§ 2030.290, subd. (a), 2031.300, subd. (a)[, [2033.280, subd. (a)].) . . . The propounding party can move the trial court for an order compelling a party to respond to the discovery request. (§§ 2030.290, subd. (b), 2031.300, subd. (b)[, [2033.280, subd. (b)].) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a 'meet and confer' requirement." (Sinaiko, supra, 148 Cal.App.4th at pp. 403-404, fn. omitted.)
The Civil Discovery Act provides a similar remedy to bring uncooperative parties to depositions: "If, after service of a deposition notice, a party . . . without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." (§ 2025.450.)
"California discovery law authorizes a range of penalties for conduct amounting to 'misuse of the discovery process.' (Code Civ. Proc., § 2023.030; [Citation].) As relevant here, misuses of the discovery process include '[f]ailing to respond or to submit to an authorized method of discovery' (Code Civ. Proc., § 2023.010, subd. (d)); '[m]aking, without substantial justification, an unmeritorious objection to discovery' (id., § 2023.010, subd. (e)); '[m]aking an evasive response to discovery' (id., § 2023.010, subd. (f)); and '[d]isobeying a court order to provide discovery' (id., § 2023.010, subd. (g))." (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Pursuant to section 2023.030, a trial court may impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against "anyone engaging in conduct that is a misuse of the discovery process." "Code of Civil Procedure section 2025.450, subdivision (d) authorizes a trial court to impose an issue, evidence, or terminating sanction under Code of Civil Procedure section 2023.030 if a party or party-affiliated deponent 'fails to obey an order compelling attendance, testimony, and production.'" (Doppes, at p. 991.)"' "Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful." '" (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.
" 'The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. "Discovery sanctions 'should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.'" [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. "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." '" ( Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701-702 (Creed-21).)
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.'" (Creed-21, supra, 18 Cal.App.5th at p. 702, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)
"The standard of review generally applicable to review of discovery orders is abuse of discretion, as management of discovery lies within the sound discretion of the trial court. [Citations.] In particular, the abuse of discretion standard of review ordinarily applies to review of an order on a motion to compel discovery [citation] and to review of an order imposing discovery sanctions for discovery misuse." (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.) In reviewing an appeal from the imposition of a terminating sanction, we" 'resolve all evidentiary conflicts most favorably to the trial court's ruling. We will reverse only if the trial court's order was arbitrary, capricious, or whimsical. It is appellant's burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court's findings. [Citation.] We presume the trial court's order was correct and indulge all presumptions and intendments in its favor on matters as to which it is silent.'" (Creed-21, supra, 18 Cal.App.5th at p. 702.) We defer to the trial court's credibility decisions and draw all reasonable inferences in support of the court's ruling. (Lopez v. Watchtower Bible &Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)
Kenne argues we should apply de novo review because the trial court's order granting terminating sanctions denied her a jury trial. However, she does not support her contention that terminating sanctions are reviewed de novo with competent authority." 'Appellate briefs must provide argument and legal authority for the positions taken.' [Citation.] 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'" (In re A.C. (2017) 13 Cal.App.5th 661, 672.) We also observe that despite her request for de novo review, the argument section of her brief consistently asserts there was an abuse of discretion.
II. No Abuse of Discretion in Denying Kenne's Motion for Protective Order and in Granting CCSM's Motions to Compel Discovery Responses
Kenne argues the court abused its discretion by denying her motion for a protective order and instead granting CCSM's motions to compel written discovery in February 2020. Kenne does not explain why the court should have granted her a protective order with regard to CCSM's set one of the form interrogatories, special interrogatories, requests for admission, and requests for production. She does not analyze the text of the discovery requests or argue on appeal that her motion showed that the "discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive" (§ 2019.030, subd. (a)(1)), or that the "selected method of discovery is unduly burdensome or expensive" (§ 2019.030, subd. (a)(2)). (See §§ 2030.090 [motion for protective order on interrogatories], 2031.060 [motion for protective order on inspection demands], 2033.080 [motion for protective order on requests for admission]).
At most, Kenne asserts that the court's exclusion of certain interrogatories and requests from its February 2020 order "proved Appellant was substantively justified in filing her [motion for protective order]." We disagree. That some of the requests were duplicative did not justify Kenne's proposed protective order. The court protected Kenne's interests by striking the duplicative interrogatories and requests.
We also note that the trial court denied CCSM's request for monetary sanctions with the duplicative discovery in mind, stating: "in that [CCSM] has agreed to strike approximately 130 interrogatories/requests the Court finds the imposition of the sanctions would be unjust."
Kenne does not state how the remaining interrogatories and other discovery requests, to which she was ordered to respond, were duplicative or otherwise objectionable. She thus waives this argument. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 ["Contentions are waived when a party fails to support them with reasoned argument."].)
Kenne also argues that the court abused its discretion in requiring Kenne to respond to CCSM's discovery without objections except for work product. However, Kenne already waived objections by failing to timely respond to CCSM's discovery requests. Her responses were due August 28, 2019 and she did not file her motion for a protective order until September. Her failure to timely respond waived any objection she had to such discovery requests. (§§ 2030.290, sub. (a), 2031.300, subd. (a), 2033.280, subd. (a).)
III. No Abuse of Discretion in Ordering Further Responses from Kenne and Monetary Sanctions
Kenne next takes issue with the trial court's February 2021 order requiring Kenne to provide further responses to specific interrogatories, to which the court had previously ordered her to provide code-compliant responses in 2020. Kenne asserts (1) she fully complied with the 2020 order, (2) the court lacked jurisdiction to hear the motion because it was untimely, and (3) the sanctions order was "mathematically incorrect."
First, Kenne's discovery responses were not code-compliant as required by the trial court's February 2020 order. For example, in her responses, Kenne refused to provide her place of employment, her monthly income, her income and earnings history, her treating physician's identity, the name and costs of the sleep medication she claimed to have taken, and the names and phone numbers of her supporting witnesses. Kenne's incomplete responses were particularly problematic because her complaint claimed damages related to lost earnings and emotional distress. (See § 2017.010 [parties entitled to discovery of "any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence."].) The court did not abuse its discretion in ordering Kenne to provide further responses.
Second, we agree with the trial court that CCSM's motion was timely. On April 20, 2020, Kenne served the discovery responses via mail. CCSM filed its motion to compel further responses on June 8, 2020, i.e., within forty-five days plus five days for service by mail pursuant to sections 2030.300, subd. (c) and 1013, subd. (a). To the extent Kenne argues the responses were served electronically on April 20, 2020 and thus CCSM's deadline was June 4, 2020, she does not cite a proof of service reflecting electronic service and we have not found such a proof of service in our search of the record. The mail service timeline thus controls.
Third, Kenne argues the sanctions should have been $2,292.50, not the $2,702.50 requested by CCSM and awarded by the court. In reaching this lesser amount, Kenne fails to multiply defense counsel's $235 hourly rate by counsel's total hours. Defense counsel attested she had spent one and a half hours on meet and confer efforts, six hours preparing the motion and supporting papers, and two hours reviewing and responding to Kenne's opposition; counsel further stated she would spend another two hours preparing for and attending the hearing on the motion to compel. Based on 11.5 hours of work, the total attorney fees were $2,702.50.
IV. There Was No Abuse of Discretion in Denying Kenne's Motions to Compel
Kenne argues the trial court abused its discretion in denying her motions to compel discovery responses "without good cause." Kenne contends "All of [defendants'] responses were nothing but unoriginal, unverified, non-conforming, evasive 'boilerplate' objections."
In reiterating the argument that she made below, Kenne again ignores the substantive responses provided by defendants in February 2020. The February substantive responses were served well before Kenne filed the discovery motions and Kenne did not disclose or analyze such responses in her separate statements in violation of Rule 3.1345(c)(2). (Rule 3.1345(c)(2) [separate statement must contain "text of each response, answer, or objection, and any further responses or answers"].) In light of this intentional omission, the court did not abuse its discretion in denying her motions.
Kenne also argues the court abused its discretion in denying her ex parte request to file a "single concise statement" in lieu of several separate statements for her motions to compel. However, denial of her request to file a single concise statement caused her no prejudice. It was Kenne's failure to inform the court of and analyze defendants' substantive responses (essentially Kenne's withholding of information) that caused her motions to fail.
V. No Abuse of Discretion in Granting Defendants' Motions to Compel Kenne's Deposition
Kenne argues the trial court erred in granting defendants' motions to compel Kenne's deposition in September 2020 and June 2021.
a. September 2020 Order
In its September 2020 order, the court found that Kenne "had refused to appear for at least two duly noticed depositions, and her refusal to appear constitutes an abuse of the discovery process." Kenne asserts that this was error because the first deposition notice was withdrawn by defendants and the second deposition notice was a "facade."
The record reflects that in early August 2019, defendants noticed plaintiff's deposition for August 29, 2019.
Correspondence between Kenne and defense counsel showed that Kenne did not intend to produce the requested documents at or before her scheduled deposition. As a result, defense counsel rescheduled and re-noticed Kenne's deposition for October 9, 2019. Kenne did not appear on October 9, 2019, as documented by the court reporter's certificate of non-appearance. This conduct plainly supported the order compelling Kenne's deposition. Although defendants rescheduled the August deposition, it was only because of Kenne's uncooperative behavior. Nothing in the record shows that defendants did not intend to go through with the October deposition.
Kenne also claims the September 2020 order was error because the trial court did not rule on her motion for a protective order with regard to her deposition. Yet, Kenne's protective order motion challenged the deposition notice on the same bases she challenged the requests for production of documents-namely, that some categories of documents sought were duplicative. The court resolved any issues with the requests for production of documents in its February 2020 order granting CCSM's motion to compel, excluding specific requests it found duplicative. Furthermore, the court's February 2020 order explicitly stated: "Kenne's Motion for a Protective Order is DENIED." Following the February 2020 order, Kenne had several months' worth of opportunities to sit for her deposition and produce the requested documents, but she chose not to.
b. June 2021 Order
Kenne next asserts the June 2021 order requiring her to appear for deposition was erroneous since it was based on her failure to appear for deposition on October 2, 2020. Kenne argues she did not have proper notice of the October 2020 deposition. However, the court's September 11, 2020 order explicitly stated: "Plaintiff's remote electronic deposition shall take place on October 2, 2020, at 9:00 AM, or any other date and time agreed to in writing by all parties." Kenne herself served notice via email of the trial court's September 11, 2020 order. She had ample notice of the deposition and blatantly disobeyed the court's order to attend.
In sum, the court did not abuse its discretion in ordering Kenne to appear for her deposition.
VI. No Abuse of Discretion in Granting Terminating Sanctions
Kenne contends the trial court's order granting defendants' motion for terminating sanctions was an abuse of discretion and that the court had a pre-determined plan to grant the terminating sanctions. The record shows otherwise.
Here, the court properly engaged in an incremental approach to discovery sanctions. It repeatedly ordered Kenne to provide code-compliant discovery responses and issued a monetary sanction only after Kenne did not comply with its first order. Even after the second order, which involved monetary sanctions, Kenne never served the code-compliant responses ordered by the court. Moreover, the court twice ordered Kenne to appear for her deposition, even allowing her to appear remotely. In its June 2021 deposition order, the court expressly warned Kenne that terminating sanctions would be the consequence for failing to appear, testify, and produce documents in good faith. Even so, Kenne was uncooperative and evasive at deposition. For example, Kenne refused to confirm that she produced all of the demanded documents, to provide the name of the physician who treated her for emotional distress, and to provide information about her alleged loss of earnings and litigation costs. Throughout the deposition transcript, Kenne initiated needless arguments, provided nonresponsive answers, and appeared uncooperative.
The record amply supports the trial court's conclusion that terminating sanctions were necessary because Kenne "demonstrated an unwillingness to participate in this action in the manner expected of all parties and attorneys, and she provides no reassurances that she intends to start complying with court orders." The trial court reasonably concluded that lesser sanctions would have been ineffective based on Kenne's repeated violations of court orders despite the imposition of monetary sanctions and the threat of terminating sanctions. (See Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1184 ["Given defendants' brazen violation of a discovery order in the face of an express warning that terminating sanctions could be issued, the trial court could have reasonably concluded a lesser sanction would not have been sufficient to compel compliance and that terminating sanctions were necessary to provide plaintiffs with the due process to which they were equally entitled."].)
Kenne argues that she participated in her deposition in good faith. Kenne asserts her refusal to answer some deposition questions was justified and permissible because "the Court never 'overruled' or made any specific orders regarding any oral deposition production, or mandatory oral deposition objections, ever." Kenne does not develop this argument or explain, for example, how her refusals to answer questions about her damages and emotional distress were justified. Given that the court ordered Kenne to provide competent responses to similar interrogatories about her treating physician and income in its February 2021 order, Kenne was aware such information was discoverable and not subject to objections.
To the extent Kenne argues she did in fact produce the demanded documents at deposition, she misses the point. Although Kenne produced documents, she never confirmed she provided all the documents defendants requested. As the trial court stated: "[A]t Plaintiff's deposition, as reflected in just under thirty pages of deposition testimony, defense counsel was unable to ascertain whether Plaintiff provided all the documents requested by Defendants and ordered to be produced by the Court, as no cogent answer was ever obtained." Instead of indicating she made a diligent search and reasonable inquiry to comply with the document requests, Kenne told defense counsel: "I cannot blanketly say with 274 requests that are compound, convoluted, disjunctive, have typos, misstate the allegations in the complaint, that I've responded because some of them have been stricken. Some are objectionable. Some are privileged. Some are work product protected." Kenne further stated, "[F]or the record, I'm not required to go through your notice of 274 documents, many of which have been stricken and already produced and figure out which ones are left to do your work for you." Kenne's refusal to provide defense counsel a straightforward answer about the document production directly violated the court's order.
Kenne further argues the trial court should not have relied on the deposition transcript lodged by defendants because it was not certified. The trial court addressed this argument, stating: "This contention is not well taken, as the August 11, 2021, filing includes a Reporter's Certification signed by a Certified Court Reporter at page 249 (and Plaintiff signed the deposition prior to this hearing)." The copy of the deposition transcript provided to this court via defendants' motion to augment likewise shows that the court reporter certified the transcript on page 249. The record also contains Kenne's certification of the deposition transcript, filed with the trial court on September 7 and 8, 2021. We see no error in the court's reliance on the deposition transcript.
Kenne also argues dismissal as to all defendants was wrongful because it was based on discovery propounded by CCSM, not the other defendants. Yet, the deposition was noticed by all defendants, and the court ordered Kenne to submit to deposition by all defendants. Again, we see no error.
VII. The Discovery Stay Was Proper
Kenne asserts the court violated her due process rights by granting defendants' ex parte request to stay discovery in February 2021. Kenne argues that the "ex parte stay operated as a discovery sanction," and thus she was "entitled to a full statutorily-noticed motion, full opportunity to brief it, and fair opportunity be heard on it, consistent with due process."
Kenne mischaracterizes the record. The stay was not a sanction; it applied to both sides. By the time of the February 2021 hearing, the court had on its docket many pending discovery motions, at least 18 by our count: Kenne's six motions to compel filed in December 2020 and January 2021, Kenne's January 2021 motion for appointment of a discovery referee, defendants' November 2020 motion for terminating sanctions, and ten motions to compel from various defendants filed in February 2021 prior to the hearing. As the court stated, the parties' discovery disputes were "getting out of control."
The court properly exercised its discretion when it imposed the discovery stay to manage the acrimonious discovery motion practice by the parties. Doing so allowed the court to address defendants' terminating sanctions motion and Kenne's request for a discovery referee before the parties expended more time and resources on discovery. It is well established that a court" 'has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.' [Citation.] . . . '[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.'" (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141; Conn v. Superior Court (1987) 196 Cal.App.3d 774, 785 ["the court has the inherent power to control the proceedings before it and to make orders which prevent the frustration, abuse, or disregard of the court's processes"].)
VIII. Kenne's Peremptory Challenge Was Untimely
In the early stages of proceedings, the trial court denied Kenne's peremptory challenge as untimely, stating:
Los Angeles Superior Court Local Rules state an assignment of a civil matter to a direct calendar courtroom is an "Assignment for All Purposes." (LASC, Rule 3.3(1).) Accordingly, Plaintiff had 15 days from notice of the assignment of her matter to this courtroom to file her CCP 170.6, as per CCP 170.6(2).
Upon the filing of her complaint on December 18, 2017, this matter was assigned to this courtroom, Dept. N, Santa Monica Courthouse. Again, as per LASC Local Rule 3.3(1), this assignment was for all purposes. Plaintiff appeared in this Court on January 4, 2018, January 25, 2018, April 25, 2018 and May 7, 2018. For the first time, on May 8, 2018, Plaintiff filed a CCP 170.6 Peremptory Challenge to this Court.
We agree that pursuant to section 170.6, subdivision (a)(2), Kenne had 15 days from the all-purpose assignment to Judge Karlan to file this motion. She failed to do so, instead waiting months and appearing multiple times before Judge Karlan before filing it.
Kenne nonetheless contends the peremptory challenge was timely because there had been "no matters on contested facts" before Judge Karlan by that point in the litigation. Kenne does not support with citation to any legal authority her contention that the all-purpose assignment rule does not apply unless the judge has heard matters on contested facts. (See In re A.C., supra, 13 Cal.App.5th a p. 672 ["If an argument in an appellate brief is supported by only an opinion or argument . . . without 'citation to any recognized legal authority,' that argument may be deemed waived for failure to present supporting substantive legal analysis."].) Her argument is thus forfeited.
IX. The Court Did Not Violate Kenne's Due Process Rights
Finally, in conclusory fashion, Kenne asserts that the trial court violated her due process rights "by constantly interrupting, cutting-off, ignoring, misstating, starting, stopping, distracting, diverting, and even recessing during Appellant's oral arguments. Thereby precluding Appellant from being heard." Kenne does not provide specific instances of this conduct by the court, instead stating: "Said due process hearing violations are so replete they can easily be seen in each and every reporter's record; but so prevalent it would be impossible to cite each individual instance in Appellant's Opening Brief (AOB), but many are."
An appellant has the burden of establishing error through reasoned arguments, not conclusory assertions. (Moulton Niguel v. Colombo, supra, 111 Cal.App.4th at p. 1215 ["Contentions are waived when a party fails to support them with reasoned argument."].) Because Kenne "fails to support [her contention] with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Moreover, we have reviewed the hearing transcripts and conclude the trial court did not violate Kenne's due process rights. The court consistently allowed Kenne to argue and make a record.
DISPOSITION
The judgment is affirmed. Defendants Community Corporation of Santa Monica, Tara Barauskas, Robert Connell, Durinda Abraham, Kyong Chang, and Alan Wittert are awarded their costs on appeal.
We concur: EGERTON, J., ADAMS, J.