Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCV 120231, Kenneth G. Ziebarth, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
David Burkenroad; and Robert Lance for Plaintiff, Cross-defendant and Appellant.
Skousen & Skousen and James Allen for Defendants, Cross-complainants and Respondents.
OPINION
Gaut, J.
1. Introduction
Plaintiff Aroonrus Leelhasuwan appeals from an order granting terminating sanctions against him and entering judgment on an action to quiet title in favor of defendants Mongkol Leelhasuwan and Barbara Leelhasuwan. Mongkol is plaintiff’s nephew. Barbara is Mongkol’s wife.
We use these parties’ first names for ease of reference. Another defendant, Vigrom Triyangkulsri, is plaintiff’s uncle but not a party to this appeal.
The central issue involves defendants’ efforts to depose plaintiff who lives in Bangkok, Thailand but has a “temporary residence in Los Angeles.” We conclude the trial court did not abuse its discretion by granting terminating sanctions against plaintiff and we affirm the judgment.
2. Factual and Procedural Background
According to the amended complaint filed by plaintiff in March 2005, he is a temporary resident of Los Angeles. He purchased residential real property in Highland in October 1975 and orally leased the property to Mongkol on a monthly basis. The lease payments consisted of the mortgage payment and the real estate taxes. As of December 2004 or March 2005, when plaintiff changed the rent to $1,200 a month, defendants refused to pay and ousted plaintiff from possession of the property.
In their cross-complaint, Mongkol and Barbara assert Mongkol and the four cross-defendants purchased the Highland property in equal shares in October 1975. In 1977, plaintiff and Somsit left the country and relinquished their interest in the property to Mongkol and the other two cross-defendants. In 1979, the other two cross-defendants gave up their interest to Mongkol and he continued to live in the property and make all payments. Mongkol married Barbara in 1979 and they made the payments on the property until 1999 when they paid off the mortgage. They continue to pay the taxes and other expenses.
Two other persons are listed as cross-defendants, Somsit Leelhasuwan, deceased, and Rachwan Prythongyam.
On July 20, 2005, the court granted defendants’ motion to compel plaintiff’s verified responses to interrogatories. The interrogatories had originally been propounded in January 2005. After not receiving the responses as ordered, defendants filed a motion for terminating sanctions to be heard on September 8. At the September 8 hearing, the court ordered plaintiff to serve verified responses within five days. The court also ordered plaintiff to pay sanctions of $1,603.80.
On September 9, defendants served plaintiff with a notice of deposition for September 26. On September 14, plaintiff’s attorney responded with a letter stating, “We have received your notice of deposition. As Mr. Leehasuwan does not reside in Los Angeles or even the United States he cannot attend the deposition scheduled for Sept. 26th. We will consider the notice and notice to produce documents thereat [sic] as invalid for this reason.” Plaintiff did not serve a written objection based on Code of Civil Procedure section 2025.410, subdivision (a). He did not seek a protective order. (§ 2025.420.) Defendants’ attorney responded, stating his understanding that plaintiff was a temporary resident of Los Angeles and would be in court on October 6 and, therefore, would still be in the United States on September 26.
All statutory references are to the Code of Civil Procedure.
Defendants filed their second motion for terminating sanctions for hearing on November 1, 2005. Defendants asserted they had not received complete and verified responses to the January 2005 interrogatories as ordered by the court on July 20 and September 8. Additionally, defendants protested plaintiff’s failure to appear for his deposition on September 26.
Plaintiff filed late opposition, contending he had supplied the verification for the interrogatory responses on September 12 when plaintiff was in the United States on business between September 1 and September 14. Plaintiff’s lawyer also asserted he had objected to the notice of deposition but he did not respond regarding the issue of plaintiff’s “temporary” Los Angeles residency.
At the November 1 hearing, the court denied the terminating motion without prejudice and granted the motion to compel plaintiff’s deposition on November 16 and continued the hearing until November 17 to monitor compliance. Plaintiff advised his lawyer by electronic mail his deposition would need to be scheduled to accommodate his business.
On November 17, after being informed by plaintiff’s counsel that plaintiff declined to appear at his deposition because he was in Thailand, the court granted the terminating motion and dismissed the complaint and plaintiff’s answer to the cross-complaint with prejudice. On Wednesday, November 23, the court temporarily suspended its order of November 17 and extended the time for plaintiff’s deposition until Tuesday, November 29, after the Thanksgiving holiday. On Monday, November 28, plaintiff and defendants’ attorneys discussed plaintiff’s proposal to commit to a deposition on January 20, 2006, but the parties did not reach an agreement. On November 30, when no deposition had occurred, the court reinstated the order of November 17.
Plaintiff made multiple motions in an effort to reverse the trial court’s ruling: a motion to vacate (§ 437, subd. (b)); a motion for reconsideration (§ 1008); and another reconsideration motion. (§ 1008.) The court denied all plaintiff’s motions. The court also awarded further monetary sanctions against plaintiff in the amount of $4,419.50 and $2,536.50.
3. Discussion
Plaintiff’s arguments on appeal can be summed up in a few sentences. Plaintiff contends he lives and operates a manufacturing concern in Thailand. Plaintiff argues defendants sought to depose him without complying with section 2025.260, governing the procedures for ordering a natural person’s deposition outside the geographic limits of section 2025.250, subdivision (a). He protests the trial court abused its discretion in ordering his deposition and granting terminating sanctions against him for not appearing at the deposition on September 26, November 16, or November 29.
“(a) A party desiring to take the deposition of a natural person who is a party to the action or an officer, director, managing agent, or employee of a party may make a motion for an order that the deponent attend for deposition at a place that is more distant than that permitted under Section 2025.250. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.”
In response, defendants counter that plaintiff never served a written objection to the notice of deposition pursuant to section 2025.410, subdivision (a), and that plaintiff repeatedly refused to comply with the court’s discovery orders, justifying the terminating order.
“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”
The standard of review requires U.S. to presume the judgment and orders of the lower court are correct unless substantial evidence does not support them. (Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 709-710.) Appellant has the burden to demonstrate reversible error. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1443.) For the trial court to abuse its discretion, it must exceed the bounds of reason. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527; Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 929.) The court does not abuse its discretion in imposing a discovery sanction where there has been a wilful failure to comply. (Miranda, supra, at p. 929.) “Wilful” encompasses knowledge, the ability to comply, and the failure to do so. (Morgan v. Southern Cal. Rapid Transit Dist. (1987) 192 Cal.App.3d 976, 984, disapproved on other grounds in Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 434.)
In the present case, although plaintiff asserted he lived in Thailand, he also claimed temporary residency in Los Angeles, and apparently traveled to the United States on business. Plaintiff had been dilatory in responding to discovery throughout 2005. When served with the notice of deposition, he did not serve a legally-adequate objection based on his claim of foreign residency. (§ 2025.410; Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 817.) Instead, he twice resisted court orders to appear for his deposition on November 16 and November 29, offering as one excuse the “press of business,” which is not legally cognizable. (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038; Martin v. Taylor (1968) 267 Cal.App.2d 112, 117.) Under these circumstances, it was not an abuse of discretion for the trial court to grant a terminating sanction.
Defendants cite two cases involving document production requests to argue that plaintiff cannot obtain relief under section 473, subdivision (b), in connection with deposition proceedings. (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275; City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1466-1467.) But the deposition statutes do not contain a provision analogous to section 2031.300 providing relief for “mistake, inadvertence, or excusable neglect.”
Assuming section 473, subdivision (b), affords relief concerning depositions, it also was not error for the trial court to deny plaintiff’s three subsequent motions for relief. In support of plaintiff’s excuse for nonappearance, plaintiff’s attorney argued that he did not understand the second terminating motion, heard on November 1, was directed at both the failure to respond to the interrogatories and to appear for deposition on September 26. The motion, however, was clearly directed at plaintiff’s “failing to appear at his duly noticed September 26, 2005 deposition.” It expressly discusses that failure in several places. In his opposition to the November 1 motion, plaintiff responded the deposition notice was not valid. The deposition was discussed at the November 1 hearing. It was beyond disingenuous for plaintiff’s attorney to claim later he did not understand the issue of the missed deposition was part of the second terminating motion. Plaintiff’s lawyer’s explanation that he made a mistake in not serving a written objection to the notice of deposition, which is standard statutory procedure and would have protected his client’s interest, also did not constitute excusable neglect. (§ 473; Elms v. Elms (1946) 72 Cal.App.2d 508, 513-514; Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.)
Finally, we disagree with defendants’ representation of the record that plaintiff never raised below the issue of compliance with section 2025.260. In his application of November 23, plaintiff asked the court to order defendants to pay the expense of his air travel from Thailand, citing former section 2025, subdivision (e)(2), now incorporated in section 2025.260, subdivision (c). The court declined to make that order but the record indicates the court considered, either expressly or by implication, the factors raised in section 2025.260, i.e., whether defendants selected the forum; the convenience to plaintiff; the expense to the parties of requiring the deposition to be taken within the distance permitted under section 2025.250; and the whereabouts of plaintiff at the time for which the deposition was scheduled. Nevertheless, the court made a determination to order defendant’s deposition for November 29.
4. Disposition
Given the history and circumstances of this case, the trial court did not abuse its discretion in granting the terminating sanction and denying plaintiff’s three motions for relief. We affirm the judgment. Defendants, the prevailing parties, shall recover their costs on appeal.
We concur: Richli, Acting P. J., Miller, J.
“(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any factor tending to show whether the interests of justice will be served by requiring the deponent’s attendance at that more distant place, including, but not limited to, the following:
“(1) Whether the moving party selected the forum.
“(2) Whether the deponent will be present to testify at the trial of the action.
“(3) The convenience of the deponent.
“(4) The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition.
“(5) The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250.
“(6) The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250.
“(7) The whereabouts of the deponent at the time for which the deposition is scheduled.
“(c) The order may be conditioned on the advancement by the moving party of the reasonable expenses and costs to the deponent for travel to the place of deposition.”