Opinion
E067881
08-07-2018
M'E LEWIS, Plaintiff and Appellant, v. HSBC BANK USA N.A., as Trustee, etc., Defendant and Respondent.
M'E Lewis in pro. per., for Plaintiff and Appellant. Meylan Davitt Jain Arevian & Kim and Troy H. Slome for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1504687) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. M'E Lewis in pro. per., for Plaintiff and Appellant. Meylan Davitt Jain Arevian & Kim and Troy H. Slome for Defendant and Respondent.
Plaintiff and appellant M'E Lewis appeals the dismissal of her complaint pursuant to Code of Civil Procedure sections 2025.450, subdivision (h), and 2023.030, subdivision (d), as a discovery sanction. Lewis and coplaintiff Walter Miller (collectively, Plaintiffs) brought an action for quiet title, fraud and declaratory relief against defendant and respondent HSBC Bank USA, N.A., as Trustee for Deutsche ALT-A Securities, Inc. Mortgage Loan Trust, Series 2006-OA1, Mortgage Pass-Through Certificates (HSBC) in connection with a foreclosure on their property. HSBC filed an answer to the complaint but misidentified the trust as "Series 2008-OA1," which was later corrected by amendment approved by the trial court as a typographical error. HSBC requested discovery, including the depositions of Plaintiffs; they refused to comply with the requests. HSBC brought several motions to compel Plaintiffs to comply with the discovery requests; the trial court ordered Plaintiffs to comply and granted issue and monetary sanctions. The trial court finally dismissed the complaint as a discovery sanction.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
An appellant's opening brief was filed on August 9, 2017, as to both Lewis and Miller, but was only signed by Lewis in propria persona. The appeal was dismissed as to Miller on August 14, 2017, for failure to file a brief after notice was given pursuant to California Rules of Court, rule 8.220(a)(1); the remittitur was issued on October 17, 2017. Thus, Lewis is the sole appellant.
Lewis presents the following issues on appeal: (1) she never received notice of the request for continuance of the trial date; (2) the order that granted the trial continuance did not provide that the discovery cutoff date had been continued, and section 2024.050 requires that the continuance of discovery be requested; (3) all discovery motions made after June 5, 2016, were untimely and Plaintiffs did not have to comply with the requests; (4) the terminating sanction dismissing the complaint was prejudicial; and (5) allowing amendment to HSBC's answer to change trust entities was prejudicial. We affirm the trial court's order of dismissal.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
On April 3, 2015, Plaintiffs filed their complaint for declaratory relief, forgery, fraud, misrepresentation and quiet title (the Complaint) against HSBC and "all persons unknown claiming any legal or equitable right, title, estate, lien or interest in the property described in the complaint adverse to plaintiff(s) title, or any cloud on plaintiff(s) title thereto." (All caps omitted.)
Plaintiffs alleged that Miller had owned and occupied the single family residence located on Piedmont Drive in Highland (the Property) since 1983. Lewis was a "joint-owner." Plaintiffs sought a determination of title as of the date of filing the Complaint. HSBC's adverse interest was based upon a trustee's deed derived from "the Forged Security Instrument" dated November 2, 2006 (the FSI), which consisted of the deed of trust and accompanying promissory note, filed in San Bernardino County on November 14, 2006. Plaintiffs had informed HSBC that the FSI and its contents were without authorization or consent of Plaintiffs. HSBC used the FSI to substitute as trustee and obtain a trustee's deed recorded on February 23, 2015, transferring the Property to HSBC (Trustee's Deed).
Plaintiffs' first cause of action was for quiet title on the Trustee's Deed. Plaintiffs alleged that Miller's signature on the FSI was forged. Miller did refinance the Property in 2006 but not based on the terms included in the FSI. Moreover, even if the FSI was valid, there was no power of sale, default or breach of any of the terms under the FSI.
The second cause of action was for fraud and concealment. Plaintiffs insisted that HSBC made material changes to the FSI and then forged Miller's signature. Plaintiffs were never served with the documents. The third cause of action was for cancellation of void deed of trust. Plaintiffs insisted that HSBC used the FSI to obtain the Trustee's Deed. As such, the Trustee's Deed was void.
Plaintiffs sought declaratory relief that HSBC made material changes to the financial terms on the FSI and then forged Miller's signature. Plaintiffs also alleged a cancellation of the Trustee's Deed. Plaintiffs sought injunctive relief enjoining HSBC from entering or selling the Property; a declaration that the Trustee's Deed was void; that the FSI be declared invalid; quieting title; and for an order requiring HSBC to rescind the trustee's sale.
B. REQUEST FOR ENTRY OF DEFAULT
On June 17, 2015, Plaintiffs filed a request for entry of default against HSBC. They sought a hearing on their request for default. The clerk of the court had entered default on June 17, 2015. Plaintiffs alleged that they served HSBC with the Complaint on May 15, 2015, and HSBC had failed to file a responsive pleading within the required 30 days. Plaintiffs presented points and authorities in support of their causes of action in anticipation of the default hearing.
C. EX PARTE APPLICATION FOR AN ORDER TO SET ASIDE DEFAULT
On July 30, 2015, HSBC filed an ex parte application for an order setting aside the default. In the application, HSBC listed its name as HSBC Bank USA, N.A. as Trustee for Deutsche ALT A Securities, Inc., Mortgage Loan Trust, Series 2008-OA1, Mortgage Pass Through Certificates (Series 2008-OA1). It sought to set aside the default entered on June 17, 2015, and to execute an order deeming HSBC's answer filed. HSBC alleged Plaintiffs did not properly serve it with the Complaint rending the default void, and it was entitled to discretionary relief pursuant to section 473.
As for service of the Complaint, Plaintiffs had served HSBC Bank USA, N.A. on May 15, 2015. Plaintiffs, when serving the Complaint, did not designate a trustee, which was integral for processing it for a defense. The default was void and should be set aside. Service of a proper complaint was necessary in order to obtain jurisdiction over HSBC. HSBC alleged it had to be served as a trustee, not as the bank. Further, the trial court should grant the relief pursuant to section 473 due to mistake, inadvertence, surprise or excusable neglect. Nationstar Mortgage was in charge of the loan for HSBC and had failed to recognize it needed to defend HSBC in the matter because HSBC was improperly named.
The FSI was attached to the ex parte application. It showed on the deed of trust that the borrower was Miller, a widower. The loan was in the amount of $370,400. It was signed by "Wallace Miller." It was notarized.
On July 31, 2015, Plaintiffs filed an opposition to the ex parte application. Plaintiffs alleged that HSBC willfully failed to answer the Complaint. They would be prejudiced because they would be evicted from their home in the associated unlawful detainer action unless they were able to obtain a stay.
The matter was set for a regularly scheduled motion to be heard on September 29, 2015. HSBC filed its answer to the Complaint using the Series 2008-OA1 name.
On September 29, 2015, the trial court granted HSBC's request for relief from default. The matter was set on the trial readiness assignment calendar for June 16, 2016, for a trial beginning on June 20, 2016. The answer was deemed filed on September 29, 2015.
D. CONTINUANCE
On December 8, 2015, HSBC filed a substitution of attorney. On April 7, 2016, HSBC (named as Series 2008-OA1) filed an ex parte application for an order continuing the trial date (Continuance Motion). It sought to continue the trial date to September 19, 2016. HSBC requested, "For an order continuing all related dates, including the discovery cut-off, based on the new trial and trial readiness hearing dates." The continuance was based on new counsel needing more time. HSBC also stated it was in a discovery dispute with Plaintiffs, which it was trying to resolve informally. Miller had responded to none of the discovery requests, which included a demand for production of documents and special interrogatories. More time was needed to complete depositions. Plaintiffs never responded to a request to stipulate to a continuance. The record does not contain an opposition to the ex parte, and Plaintiffs were not present at the hearing.
The continuance was granted to January 19, 2017, on the trial readiness calendar, with the trial beginning on January 23, 2017. HSBC served Plaintiffs with a notice of ruling on the continuance on April 11, 2016. It provided that the trial court had granted HSBC's application for a continuance.
E. MOTIONS TO COMPEL AND AMEND ANSWER
On May 9, 2016, HSBC filed two motions. First, HSBC filed a motion to compel Miller to respond to special interrogatories (set No. 1); HSBC requested sanctions in the amount of $960. HSBC was again named as Series 2008-OA1. Miller had provided no responses to the interrogatories, which were due March 17, 2016, and they were crucial for the defense in the matter. Attempts to meet and confer had failed.
The second motion filed on May 9 was a motion to compel Miller to produce documents and for sanctions in the amount of $960. Miller had not responded to a request for production of documents, which was also due on March 17, 2016. Again, HSBC had attempted to meet and confer to resolve the matter informally but had received no response.
The motions were heard on June 7, 2016. Plaintiffs were not present. Both motions to compel were granted. The trial court ordered that responses be made to the discovery within 10 days of June 6, 2016. Miller was sanctioned $1,500. Notice was served on June 7, 2016.
On June 14, 2016, Plaintiffs filed a notice of default and request for order directing the civil clerk to correct the record. They named HSBC as Series 2006-OA1. Plaintiffs argued that HSBC, as named in the filing as Series 2006-OA1, remained in default in the case because it never filed an answer to the Complaint. Plaintiffs contended the entity that had responded under the Series 2008-OA1 was not a party to the action. Any orders and judgments under that party were void. Plaintiffs requested that HSBC be found to be in default.
On July 8, 2016, Plaintiffs filed a request for an order correcting the record and directing the civil filing clerk to correct the record. They insisted the "real defendants" were defaulted by the clerk on June 17, 2015, and remained in default. The wrong entity had been filing motions to compel and was receiving orders from the court. Every document filed by this other party was false and untruthful because it had no interest in the Property and was not being sued by Plaintiffs. Plaintiffs sought an order finding HSBC in default and voiding all orders obtained by the Series 2008-OA1 entity.
On July 26, 2016, HSBC, now named as Series 2006-OA1, filed an ex parte application to allow amendment to its answer pursuant to section 473, subdivision (a), and California Rules of Court, rule 3.1324. HSBC asked to correct a typographical error in its name in the answer, and an order deeming the answer timely filed. HSBC had only become aware of the error when Plaintiffs filed their pleading pointing out the mistake.
HSBC complained that it had filed its answer 11 months prior and Plaintiffs were only just then complaining about the "typo." HSBC insisted that only a minor alteration of a typographical error was required. It would not prejudice Plaintiffs if the amendment was granted as it did not change the discovery or defense in the case. Counsel for HSBC declared the change was not substantive and was merely a typographical error.
Plaintiffs filed opposition to the ex parte application to amend. They insisted that default had been entered against HSBC by the clerk of the court on June 17, 2015, and HSBC had never filed an answer or asked for relief from default. Plaintiffs insisted that the court should not recognize the entity Series 2008-OA1 and that it should find HSBC in default.
On July 27, 2016, the trial court granted the ex parte application to amend the answer. It found it was a mere typographical error and ordered that the answer be amended to indicate Series 2006-OA1. The amendment was filed and the answer was newly verified by counsel on behalf of HSBC.
F. MOTION FOR ISSUE SANCTION AND MOTION TO COMPEL DEPOSITIONS
On August 2, 2016, HSBC filed a motion for issue sanctions (Issue Motion) against Miller pursuant to section 2030.290, subdivision (c); section 2031.320, subdivision (c); and section 2023.030, subdivision (b), seeking an order from the court deeming Miller's signature on the FSI as valid and enforceable. Miller had still not responded to any of the discovery requests despite being ordered on June 7, 2016, to respond. Plaintiffs also had failed to appear at noticed depositions on July 19 and 20, 2016, which showed their bad faith. HSBC was severely prejudiced by Miller's refusal to comply with the discovery requests. HSBC had made an effort to resolve the issues without court intervention but Miller had never responded.
On August 5, 2016, HSBC filed a motion to compel Plaintiffs to appear at their depositions (Deposition Motion). HSBC sought $960 in monetary sanctions. Notices of depositions were served on Plaintiffs for depositions set to occur on July 19 and July 20, 2016. Plaintiffs did not appear. No objections to the deposition notices were served by Plaintiffs. Miller was to be deposed as to his knowledge of the FSI. HSBC was entitled to monetary sanctions pursuant to section 2025.450, subdivision (g)(1). Plaintiffs did not respond to inquiries as to why they failed to respond and appear at the depositions. HSBC sought an order compelling Plaintiffs to appear at their depositions within 10 days. The notices of depositions were attached and named HSBC as Series 2008-OA1; however, they were dated June 16, 2016, which was prior to the trial court ordering the amendment to the answer.
On September 9, 2016, HSBC filed a supplemental declaration in support of the Issue Motion. HSBC provided that after the Deposition Motion was filed and served, Miller sent responses to the written discovery requests. The responses were inadequate and did not include a single document. HSBC advised Miller that the responses were inadequate but received no response. The responses were attached to the supplemental declaration. Miller was incoherent, only referring to HSBC illegally entering the Property when a stay order had been issued, and that the FSI was forged. In response to the interrogatories, Miller stated he had owned the Property since 1983, Lewis was a coowner, the FSI had been forged, and HSBC had custody and control over all of the documents.
Lewis filed an opposition to the Issue Motion on September 12, 2016, on behalf of Plaintiffs. Lewis alleged Plaintiffs were not served with the court order—that Miller had until August 15, 2016, to respond to the discovery requests—and then Miller timely responded. Further, all discovery requests were sent by HSBC as Series 2008-OA1 and Series 2008-OA1 was not a party to the action. Miller did not have to respond to requests sent by an entity not part of the case. Lewis also claimed all of Plaintiffs' documents were inside the Property but HSBC had forcibly removed Plaintiffs and changed the locks in violation of a stay order in the unlawful detainer action. Lewis submitted a declaration that she had tried to call counsel for HSBC to resolve the case but never could talk to anyone.
At a hearing on September 13, 2016, the trial court granted the Issue Motion against Miller, which resulted in the trial court finding that Miller's signature on the FSI was not forged or void. Plaintiffs were served with the trial court's order on September 14, 2016. On September 21, 2016, Plaintiffs filed an objection to the order issued following the granting of the Issue Motion. Plaintiffs insisted that HSBC had used false documents and manufactured discovery disputes to validate the void FSI.
On September 20, 2016, Plaintiffs filed opposition to the Deposition Motion. Plaintiffs claimed that the notices of depositions were served by Series 2008-OA1, which was not a party so they did not have to comply. Further, they tried to contact HSBC's counsel regarding the deposition dates but counsel was unavailable.
The Deposition Motion was heard on September 21, 2016. Plaintiffs were not present. The motion was granted. Monetary sanctions in the amount of $960 were imposed. The trial court signed the order compelling Plaintiffs' depositions on September 22, 2016, with the depositions to occur within 10 days; monetary sanctions were imposed in the amount of $960. Plaintiffs were served with the order on October 3, 2016.
G. MOTION FOR TERMINATING SANCTION
On November 28, 2016, HSBC filed a motion for a terminating sanction against Plaintiffs pursuant to sections 2025.450, subdivision (h), and 2023.030, subdivision (d), (Terminating Motion). HSBC sought an order imposing a terminating sanction against Plaintiffs for failing to comply with the court's order that they appear at their depositions and produce all documents as detailed in HSBC's notices of depositions, by October 1, 2016. HSBC had repeatedly tried to get Plaintiffs to appear at depositions but they had failed to make themselves available nor had they produced any documents. HSBC had extended the opportunity to appear at the depositions until October 26, 2016, but Plaintiffs failed to comply. Plaintiffs failed to pay the monetary sanctions. Plaintiffs' willful refusal to comply with discovery requests and the court's orders warranted a terminating sanction.
Plaintiffs filed opposition to the Terminating Motion. Plaintiffs insisted the motions to compel filed by HSBC were submitted after the discovery cutoff date. Further, Plaintiffs had complained that the depositions were being taken too far from their home. Plaintiffs were never given a date certain for the depositions.
Plaintiffs again insisted that when HSBC requested a continuance of the trial date in April 2016, it only received a continuance of the trial date; it did not request that the trial court continue the cutoff date for discovery. The trial date was June 20, 2016, so the cutoff date was June 5, 2016. Any motions to compel discovery filed after June 5, 2016, were untimely. Lewis declared she agreed to a deposition on October 31, 2016, but HSBC refused and filed the terminating sanction motion. Plaintiffs attached a copy of the court's order for the trial continuance; it did not discuss discovery.
HSBC filed a reply to the opposition. HSBC insisted that the Continuance Motion included a request to extend the cutoff date for discovery. The trial court granted the Continuance Motion, which necessarily included a continuance of the discovery cutoff date.
HSBC also filed a motion for summary judgment. Plaintiffs objected to the motion for summary judgment as untimely and argued that the quiet title action could not be resolved unless Plaintiffs were afforded an evidentiary hearing.
The motion for summary judgment is not part of the record.
The record contains a minute order from the hearing on the Terminating Motion held on December 27, 2016, but no reporters transcript. Plaintiffs did not appear. The request by HSBC for terminating sanctions was granted. The Terminating Motion was "granted due to plaintiff's failure to appear at deposition." The trial court ordered on December 27, 2016, that the Terminating Motion was granted and the "Complaint is stricken and this action is dismissed pursuant to Sections 2025.450(h) and 2023.030(d)(1) and (2) of the Code of Civil Procedure." Notice was served on January 3, 2017. The judgment of dismissal was filed on January 9, 2017, and served on Plaintiffs on January 18, 2017.
DISCUSSION
A. TERMINATING SANCTION
Lewis appears to make the following claims on appeal regarding discovery: (1) she never received notice of the request for continuance; (2) the order that granted the continuance did not provide the discovery cutoff date had been continued, and section 2024.050 requires that the continuance of discovery be requested; and all discovery motions made after June 5, 2016, were untimely and Lewis did not have to comply with the requests. Based on the foregoing, Lewis was prejudiced by the grant of the terminating sanction because Plaintiffs were not required to comply with the requests for discovery.
First, there is no support for Lewis's contention she was not properly served with the Continuance Motion. Relying solely on the fax and email notices, she claims she never received notice of the Continuance Motion. Lewis never raised this issue below despite understanding the Continuance Motion had been granted. The evidence Lewis relies upon on appeal to support she was not served does not conclusively establish she did not receive notice. The fax was sent; it is only Lewis's self-serving statement on appeal that it was not received. The Continuance Motion was also mailed. Finally, the email that Lewis contends was incorrect on the proof of service was correct on a letter sent to Lewis addressing the Continuance Motion. The record does not support that Lewis was never served with the Continuance Motion.
Second, the Continuance Motion included a request for extension of the discovery cutoff date. Lewis contends that a trial continuance does not automatically extend the discovery cutoff date. HSBC had to comply with the requirement for reopening of discovery pursuant to section 2024.050.
"Subdivision (a) of section 2024.020 specifies that '[e]xcept as provided in this chapter, any party shall be entitled as a matter of right . . . to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.' Thus, if a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. By negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard. But the fact that a party does not have a right to have a discovery motion heard after the discovery motion cutoff date does not mean the court has no power to hear it, or that the court errs in hearing it. Indeed, subdivision (a) of section 2024.050 specifically allows a discovery motion to be heard after the discovery motion cutoff date by providing that 'the court may grant leave . . . to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.' But that statute also specifies that such leave may be granted '[o]n motion of any party.' [Citation.] Moreover, such a motion must be accompanied by a meet and confer declaration, and in exercising its discretion to grant or deny the motion the court must consider various factors, including (but not limited to) '[t]he necessity and the reasons for the discovery' and '[t]he diligence or lack of diligence of the party seeking . . . the hearing of a discovery motion, and the reasons that . . . the discovery motion was not heard earlier.' " (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586-1587, fns. omitted.)
A motion to extend discovery, like a motion for a continuance, lies within the sound discretion of the trial court and may be overturned only if it is shown that discretion has been abused. (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 418-419.)
Based on section 2024.020, subdivision (b), the request by HSBC to continue the trial date did not automatically extend the discovery date. However, the Continuance Motion substantially complied with section 2024.050. The Continuance Motion specifically requested that the discovery cutoff date be extended. HSBC detailed that it was having problems obtaining discovery from Plaintiffs and needed more time to complete discovery. HSBC also argued, with a supporting declaration from counsel, that it had tried to meet and confer with Plaintiffs to continue the trial date but plaintiffs had not responded.
Section 2024.020, subdivision (b) provides "Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings." --------
The Continuance Motion, which was granted in total by the trial court, included an extension of the discovery cutoff date. As such, the motions to compel discovery and depositions were properly accepted by the trial court. Further, the trial court could consider the Terminating Motion.
Finally, to the extent Lewis raises that the terminating sanction was improper, such argument is without merit.
Section 2025.450, subdivision (h) provides in part: "If [a] party or party-affiliated deponent . . . fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated."
Section 2023.030, subdivision (d) provides: "The court may impose a terminating sanction by one of the following orders: [¶] ( 1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. [¶] (2) An order staying further proceedings by that party until an order for discovery is obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party. [¶] (4) An order rendering a judgment by default against that party."
"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.' " (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992, fn. omitted.) We review the trial court's decision in selecting a discovery sanction for abuse of discretion. (Ibid.; see also Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)
Here, HSBC had filed two motions to compel, one for interrogatories and one for production of documents. Miller failed to timely respond and the trial court granted HSBC's motions to compel. The trial court imposed monetary sanctions against Miller in the amount of $1,500. Despite these court orders, Miller never produced any documents in support of his claim the FSI was forged. Miller finally responded to the interrogatories after the court-ordered deadline had expired, but the responses were incoherent and unresponsive. Miller never paid the sanctions.
HSBC also filed a motion to compel Plaintiffs to submit to depositions, which was granted by the trial court. Plaintiffs refused to appear at the depositions. The trial court imposed monetary sanctions but these were not paid by Plaintiffs.
HSBC was forced to file the Terminating Motion when Plaintiffs failed to comply with any of the trial court's orders and failed to pay the monetary sanctions. Lesser sanctions employed by the trial court to persuade Plaintiffs to comply were not successful. The trial court's decision to impose terminating sanctions did not exceed the bounds of reason, and thus the trial court did not abuse its discretion when it struck Plaintiffs' complaint.
B. CORRECTION OF TYPOGRAPHICAL ERROR
Lewis contends the trial court erred by deeming HSBC's continual reference to Series 2008-OA1 as merely a typographical error. Lewis insist that Series 2008-OA1 was a different entity, not simply a typographical error. This other entity submitted declarations and sworn testimony. The amendment to the answer was unverified because HSBC was required to submit a newly signed verification attesting to the newly amended name. HSBC was required to file a noticed motion to amend the verification as required by section 473, subdivision (a)(1). Lewis asks this court to declare that the amendment to the answer changed the entity, and the entity named in the Complaint, HSBC, should be declared to have defaulted.
Section 473, subdivision (a)(1) provides, "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer." "Whether an amendment to change the name of a party will be allowed depends on whether the mistake is merely a misnomer in the description of the party or 'a substitution or entire change of parties.' " (Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470.)
Here, HSBC had included in pleadings, up until the request to amend the answer, that the trust name was Series 2008-OA1 instead of 2006-OA1. HSBC requested that the answer be amended to fix the typographical error. HSBC's counsel submitted pleadings and a declaration that the mistake was only a minor typographical error. New verifications were filed on July 28, 2016. Lewis has failed to provide any support that Series 2008-OA1 was a "real, existing, and live" legal entity. (Diliberti v. Stage Call Corp., supra, 4 Cal.App.4th at pp. 1470-1471 [amendment sought to change from one person to the name of another person not identified in the complaint].) The trial court properly allowed the answer to be amended. HSBC was not in default.
Plaintiffs willfully and purposefully disobeyed the trial court's orders to provide discovery and submit to depositions. The trial court did not abuse its discretion by allowing the answer to be amended, granting the terminating sanction and dismissing the Complaint.
DISPOSITION
The judgment of dismissal is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. FIELDS
J.