Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV096063
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On October 10, 2007, the plaintiff in this civil action sued her son Harold Placheta and others alleging causes of action for financial elder abuse, fraud, quiet title, accounting, constructive trust, common count and declarative relief. The defendants answered the complaint on February 19, 2008. Thereafter, plaintiff moved to compel discovery and for monetary sanctions. Eventually, plaintiff successfully moved for terminating sanctions against defendants for willful violations of the court’s discovery orders. The court struck defendants’ answers and entered a default judgment for over a million dollars. Defendant Harold Placheta appeals, arguing that the trial court abused its discretion and violated his due process rights. We will reverse the judgment.
BACKGROUND
As the trial court described the matter in its tentative ruling on plaintiff’s motion to compel discovery, “[t]his lawsuit surrounds events pertaining to financial elder abuse. Plaintiff was allegedly enticed by her son Harold Placheta (‘Harold’) into signing over the deed to her house two weeks after her husband died. The three defendants then allegedly took all of the equity out of the property, an amount estimated to be about $900,000.”
Plaintiff’s verified complaint was filed October 10, 2007. Defendants filed their verified answer on February 19, 2008. Plaintiff personally served a first set of discovery on February 26, 2008.
Defendant also served a first set of form interrogatories on Plaintiff. Plaintiff responded to each request for admissions (54 in all) by objecting that defendant had used an outdated Judicial Council form and that “California Rules of Court, Rule 1.37, provides that a person using Judicial Council forms must use the current version.”
According to plaintiff’s memorandum of points and authorities in support of the motion for terminating sanctions, plaintiff subsequently filed a motion to compel depositions, when two of the defendants failed to appear at their depositions. She also filed a motion for a protective order when defendants set plaintiff’s deposition and plaintiff’s counsel’s deposition for conflicting dates and times that were before defendants’ depositions. Plaintiff prevailed on both motions. Defendants filed a motion for appointment of a discovery referee, on which plaintiff prevailed; a motion to compel plaintiff’s deposition, on which defendants prevailed; and an ex parte application to order plaintiff’s immediate deposition, on which plaintiff prevailed.
Plaintiff subsequently filed motions to compel discovery and to quash a deposition subpoena for plaintiff’s counsel, and defendants moved to quash a deposition subpoena for their counsel or, in the alternative, for a protective order. In advance of a May 9, 2008 hearing date, on May 7 or 8, 2008, the court issued a tentative ruling granting plaintiff’s motion to compel further responses to 22 form interrogatory requests from defendants, and finding that the responses were not code-compliant.
The court also granted plaintiff’s motion to compel further responses to special interrogatory requests 1 through 75, finding that the responses were not code-compliant, and that defendant had waived the right to produce writings or object to the interrogatories by failing to respond to the interrogatories in a timely fashion.
In addition, the court granted plaintiff’s motion to compel the further production of code-compliant, objection-free responses along with all responsive documents relating to “disputes about Plaintiff’s title to the subject property” and two deeds of trust. And, the court granted plaintiff’s motion to quash the deposition subpoena served on plaintiff’s counsel.
The court denied defendants motion to quash the deposition subpoena served on defendants’ counsel, but granted their request for a protective order allowing defense counsel to assert the attorney-client or work product protections if necessary.
Plaintiff requested $2,840 in monetary sanctions against defendants and their attorney for her motion to compel further responses to written interrogatories. Instead, the court granted $1,640. The court denied plaintiff’s request for $740 in monetary sanctions against defendants’ counsel for opposing their motion to quash the subpoena served on plaintiff’s counsel because the court did not “feel that the motion was opposed in bad faith or without substantial justification.” The court also denied plaintiff’s request for monetary sanctions against defendants’ counsel for opposing defendants’ motion to quash the deposition subpoena for defense counsel, since defense counsel “prevailed on the portion of his motion that requested a protective order and was justified in filing his motion.” The court denied defendants’ request for monetary sanctions against plaintiff. Finally, the court ordered defendants to provide further code-compliant and objection-free responses, along with all responsive documents, all outstanding verifications for their written discovery, and $1,640 in monetary sanctions “within 20 calendar days of the order, ” that is, May 29, 2008.
On May 9, 2008, plaintiff’s counsel appeared before the court ex parte to contest the tentative ruling. Defendants’ counsel was not present. The court observed that counsel’s e-mailed notice of intent to contest the tentative ruling was sent to the court at 4:12 p.m., and that defendant’s counsel was likely to say that he received the notice later than 4:00 p.m. Plaintiff’s counsel assured the court “it was faxed to [defense counsel’s] office and it was before those e-mails were sent. I can’t find the printout, but I’m sure it’s 3:59, 4 o’clock. 4:01. It’s very, very close to 4 o’clock, if not before 4 o’clock.” The court permitted plaintiff’s counsel to proceed. Plaintiff’s counsel objected to the court giving defendants 20 days to comply. He also argued that the court should have imposed a higher monetary sanction on defendants for failing to meet and confer.
The court took the matter of further sanctions under submission, but ruled as follows with respect to the time for compliance. “In open court I’m announcing that the defendants are to provide further code-compliant and objection-free responses along with all responsive documents within ten days, verifications within ten days, payment of the sanctions of $1640 within ten days, and that is on the motion to compel. Okay, thank you.”
The court never memorialized its amendment of the tentative ruling in a minute order, and plaintiff’s counsel never prepared an order concerning the amendment for the court’s signature. A minute order for the May 9, 2008 law and motion calendar shows that a motion to compel defendants’ further responses to form interrogatories, special interrogatories, request for production of documents, set one, and for sanctions was heard; that only plaintiff’s counsel was present; and that the matter was submitted. However, on May 9, May 12, and May 16, plaintiff’s counsel sent defense counsel numerous letters by facsimile about the oral order. On May 12, defense counsel responded by facsimile: “[T]he contentions in your fax regarding your decision to go to court to contest a tentative ruling last Friday are incorrect for the following reasons: [¶] You did not give the Court or my office notice before 4:00 p.m. as required by the Local Rules to contest a tentative ruling. The Rule is mandatory. [¶] We advised you in writing that we would not be appearing ex parte as you had agreed not to have nonparty family members subject to judicial restraining orders attend plaintiff’s deposition. We received your Thursday late afternoon call and sent a fax to your office confirming that we would not be appearing ex parte.”
On May 19, 2008 – the day further responses and monetary sanctions were due to be paid under the court’s amended May 9 ruling – defense counsel sent plaintiff’s counsel a facsimile, stating: “[W]e haven’t received the Court’s final order for the discovery motions that were set for May 9th. It is my understanding that further responses are due 20 days following the hearing. Can you please be so kind as to forward to us the Court’s tentative ruling? The computer link to the tentative ruling we had in our system is no longer valid and we can no longer access the tentative on the Court’s website. (The link now references May 16th rulings.)”
Defendant did not comply with the court’s amended tentative ruling by May 19, 2008.
On May 21, 2008, plaintiff’s counsel filed a motion for evidentiary or terminating sanctions, or, in the alternative, for an order compelling compliance with the court’s discovery orders and with appropriate relief to plaintiff such as vacating the trial date, re-opening discovery, and issuing further monetary sanctions against defendants and their attorney. The hearing on the motion was set for May 30. Trial was scheduled for June 9, 2008.
In the memorandum of points and authorities in support of the motion, plaintiff argued that defendants had refused to appear at depositions, refused to answer questions when they did appear, refused to identify or produce documents, and refused to answer interrogatories.
Defendant filed an opposition to the motion on May 27, 2008. Defendant argued that the motion should be denied because “[d]efendants have complied with the court’s May 9th ruling.” Further, defendant argued that there was no noncompliance with a court order, because the order was issued on May 8, and plaintiff did not contest it in the manner required by the local rules because she did not contact the court or him before 4:00 p.m. Defense counsel averred that he had spoken with the court’s clerk who confirmed that there was no order other than the May 9 order giving him 20 days to comply. He also contested plaintiff’s assertion that there was a final discovery order addressing Harold’s written objections to the documents requested in plaintiff’s deposition notices on May 7, 2008, the day on which defendants Miriam Placheta and Jesus Ticsay were deposed. The order was not issued until May 9, two days after the depositions. He also stated that, contrary to plaintiff’s assertion, defendants’ counsel had made written and telephonic efforts to re-schedule defendants’ depositions after plaintiff “prematurely suspended” them.
On May 28, 2008, Plaintiff filed a “Notice of Lodging of Additional Evidence for Hearing on Plaintiff’s Motion for Evidentiary and Terminating Sanctions Against Defendants for Their Failure to Comply with a Court Order.” The additional evidence consisted of copies of all three defendants’ unverified further responses to form interrogatories; all three defendants’ unverified further responses to the first set of special interrogatories; all three defendants’ further responses to the first set of requests for production of documents; and a verification of further responses to the first set of inspection demands, dated May 26, 2008.
On May 30, 2008, a hearing was held on plaintiff’s motion. At the hearing, the court observed that in her “reply papers, ” plaintiff pointed out that the “the discovery responses that were served were unverified. The court’s order required code compliant responses, and unverified responses are not code compliant.”
It is not clear whether the “reply papers” to which the court referred consisted of the additional evidence lodged with the court or to some other pleading. If the latter, it has not been included in the Appendix in lieu of a Clerk’s Transcript.
Defense counsel argued that the reply was “incomplete.” He explained that defendants had until the previous day – May 29 – to provide further responses, and that he had provided plaintiff’s counsel with verifications for the requests for production of documents. He had also sent a letter saying that the other verifications, which his clients were late in getting to him, would be provided to him, and that it was his understanding that all of the originals of the verifications had been hand-delivered to counsel’s office the day before.
Plaintiff’s counsel responded by holding up what he had received, which the court identified as “a plastic sheet protector with some document and a CD or DVD disk or something.” Defense counsel did not print it out. Plaintiff’s counsel asserted that the verifications “were not dropped off at my office. Whatever he was informed about, that was not evidence. I was at my office all day yesterday. It was not dropped at my office. I didn’t leave until 6:30.”
Plaintiff’s counsel also complained that the discovery responses were also incomplete and not code compliant: some answers had been left blank; each party gave the same responses, including listing “the same job, the same address, the same knowledge of witnesses.” The responses were not signed by the attorney. Defendants’ responses to interrogatory 15.1 stated that the complaint is defective and is subject to a pending motion for judgment on the pleadings, but that motion had been denied, for the second time, three weeks earlier. The documents consisted of tax records and 16 pages of bank statements, but only the first page of the statement was copied and the tax returns “don’t prove anything.” And, the sanctions had not been paid. Plaintiff’s counsel also pointed out that the court’s first order regarding documents that were to be produced at deposition was made in April, and that defendants failed to follow it because the court had never signed a final written document.
In addition, plaintiff’s counsel had discovered, while having dinner with the client and her family two weeks earlier, that a family member had found a deed of trust loaning Harold an additional 123 thousand dollars, “not testified to in the deposition, not identified in the documents.” “So unless I amend this complaint to allege what I have now found, which is the evidence they have been withholding from me for months, she is out another hundred twenty-three thousand dollars.”
Plaintiff’s counsel also alleged that defense counsel’s declaration stating that defendants had turned over a DVD of plaintiff transferring the property to Harold on the same day the DVD was located, was contradicted by what defense counsel had told the court earlier, and what the client had said at his deposition.
According to plaintiff’s counsel, “[t]his isn’t just one order that’s been violated. This is every ruling you’ve made except the ones that benefit the defendants.”
Defense counsel admitted that he had sent the discovery responses on a CD-ROM instead of in writing, because he and plaintiff’s counsel had been sending papers back and forth electronically throughout the litigation. As for the verifications for the form interrogatories, he had faxed them to plaintiff’s counsel as soon as he received them from the client, and the client had further represented to him that he had an employee hand-deliver all of the originals of the verifications the day before. Thus, when he filed his response on May 27 saying that his clients had complied with the court order, he thought that information was correct, “but my clients then surprised me by only sending over part of the verifications.”
The court took the matter under submission, stating: “I have heard everything I need to hear. Thank you.” Over two months later, on August 12, 2008, the court filed two orders. One order is dated May 9, 2008, in the first paragraph and dated August 10, 2008, on the last line, next to the judge’s signature. It states: “The motions of Plaintiff Lolita T. Placheta (“Plaintiff”)... came on regularly for hearing before the [court] on 9 May 2009 at 10:00 a.m. and [were] resubmitted on 30 May 2008 ....” (Italics added.) Otherwise, it is virtually identical to the court’s earlier minute order memorializing its tentative ruling of May 8, 2008, except that it orders $1,240 in monetary sanctions instead of $1,640. It orders defendants to comply with “within 20 calendar days of this order.”
The other order is dated “30 May 2008” in the header and dated “10 August 2008” in the last line, next to the judge’s signature. This order states: “Defendants were served with valid court orders requiring them to comply with certain discovery obligations. During argument in another case between family members, this Court asked about the status of discovery in this case. Both parties provided this Court with additional information. [¶] This court is satisfied that Defendants still have not complied with this Court’s lawful orders. The motion of Plaintiff for terminating sanctions is GRANTED. The answers of defendants are SATRICKEN (sic) and plaintiff may proceed by way of default prove up. [¶] No additional monetary sanctions will be imposed.” (Italics added.)
On August 18, 2008, defendants filed an “Ex Parte Application for Order Resolving Conflicting Court Orders.” That same day, plaintiff’s counsel filed a “Plaintiff’s Statement re: Defendants’ Ex Parte Application for Clarification of the 12 August 2008 Orders, ” which included an order prepared by him “attempting to clarify and harmonize the two orders.” That proposed order was signed by the judge and provides that (1) the order granting plaintiff’s May 9, 2008 motion was entered on August 12, 2008, nunc pro tunc, to reflect the decision made by the court on May 9, 2008, based on the papers submitted by the parties and the arguments of counsel; (2) at the May 9, 2008 hearing, the court modified its tentative ruling by ordering defendants to comply within 10 days instead of 20, and pay $1,240 in sanctions instead of $1,640, except that “all other issues of monetary sanctions were taken under submission”; (3) “[t]o the extent the 12 August 2008 order refers to the 30 May 2008 hearing and the arguments of counsel, those portions of the order relate to the several motions by Plaintiff for monetary sanctions against defendants and/or their counsel, which had been submitted, and were under submission from previous motions, ” and (4) the court’s August 12, 2008 order granting Plaintiff’s motion for terminating sanctions remains unchanged.
Defendants’ subsequently filed a timely motion for reconsideration of the court’s order granting plaintiff’s motion for terminating sanctions, which was denied on October 17, 2008. On May 21, 2009, the court entered a default judgment in favor of plaintiff in the amount of $1,173,259.10, together with interest and costs, including attorney’s fees.
Defendant Harold Placheta timely appealed. No respondent’s brief was filed in this case. We will therefore decide the appeal on the record, the opening brief, and any oral argument by the appellant. (Cal. Rules of Court, rule 8.220(a)(2); Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
CONTENTIONS
Defendant asserts that the default judgment is void, because imposition of the terminating sanction was improper for the following reasons: (1) the court’s decision was based, at least in part, on events that occurred after the May 30 hearing and while the matter of sanctions was under submission; (2) to the extent that the court imposed sanctions for non-compliance with discovery that occurred after May 30, it’s order was equivalent to a conditional order imposing sanctions and was therefore invalid; (3) the court’s August 18 order attempting to harmonize the inconsistent orders of August 12 by reinterpreting the events of May 9 and May 30 and issuing a “nunc pro tunc” order did not give “timely notice to the affected parties of what past performance was required of them and therefore cannot support imposition of a sanction”; and (4) plaintiff’s noticed motion for sanctions did not challenge the sufficiency of defendants’ further responses and therefore did not give defendants’ adequate notice of the basis for the terminating sanction prior to its imposition. Finally, defendant argues that imposition of a terminating sanction in this case was an abuse of discretion because there was no showing of a willful failure to comply with a court order.
Plaintiff did not respond to defendant’s contentions.
DISCUSSION
We begin our analysis by describing the standards that govern our review.
I. Standard of Review
On appeal, we review the trial court’s choice of sanctions with respect to discovery matters for abuse of discretion. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) The trial court’s discretion, however, is circumscribed by certain substantive and procedural limits. Substantively, there must be a willful failure to comply with a court order for discovery. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Procedurally, a noticed motion is required, and sanctions may not be granted ex parte. (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 202.) Within these limits, the trial court enjoys broad discretion, which will not be disturbed on appeal absent a showing of abuse. (Sauer v. Superior Court, at p. 228.)
II. Imposition of Discovery Sanctions
“A trial court may impose sanctions, including terminating sanctions, for a party’s misuse of the discovery process, which includes disobedience of a court order.” (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at p. 207; see Code Civ. Proc., §§ 2023.010 [misuses of discovery], 2023.030 [sanctions].)
Further unspecified statutory references are to the Code of Civil Procedure.
A. Substantive Prerequisites
Generally speaking, non-monetary sanctions for discovery abuse will not be imposed in the absence of willful failure to comply with a prior court order. “[T]wo facts are generally prerequisite to the imposition of nonmonetary sanctions...: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful. (See, e.g., R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496 [terminating sanctions properly imposed for repeated efforts to thwart discovery, including violation of two discovery orders].) Even where nonmonetary sanctions are called for, they... 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. [Citations.]... [¶] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” (Biles v. Exxon Mobil Corp., supra, 124 Cal.App.4th at p. 1327, internal quotation marks omitted.) A stipulation by the parties may substitute for the court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279 [stipulation waived party’s “right to insist on a formal order compelling responses as a precursor to an issuance of evidentiary, issue, or terminating sanctions”], overruled on another point in Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273.) Nevertheless, there must be a judicial finding of willful non-compliance. (See, e.g., Weinkauf v. Superior Court (1966) 64 Cal.2d 662, 664; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788.) “To justify imposition of such discovery sanctions, the trial court must expressly find that the disobedient party’s failure to obey was wilful.” (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489.) The propriety of terminating sanctions is determined by the totality of the circumstances, including the willfulness of the improper acts, the detriment to the propounding party, and the number of formal and informal attempts to obtain the discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244-1246.)
B. Procedural Requirement
The trial court’s power to impose discovery sanctions is also limited by statutory and constitutional procedural requirements. (See Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at pp. 207-208.) By statute, “the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose” specified sanctions. (§ 2023.030.) “Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions.” (O’Brien v. Cseh (1983) 148 Cal.App.3d 957, 961 [sanctions under § 128.5]; Sole Energy Co. v. Hodges, at p. 208 [discovery sanctions].) To satisfy these procedural safeguards, a noticed motion is a necessary predicate to the imposition of discovery sanctions. (Sole Energy Co. v. Hodges, at p. 208; see § 2023.040; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 5 [citing predecessor provision, former 2034, subd. (b)].) Ex parte imposition of discovery sanctions offends due process as well as statutory protections. (Sole Energy Co. v. Hodges, at p. 208.)
A party must also have notice of the court’s order. Pursuant to California Rules of Court, rule 3.1312, “[u]nless the parties waive notice or the court orders otherwise, the party prevailing on any motion must, within five days of the ruling, serve by any means authorized by law and reasonably calculated to ensure delivery to the other party or parties no later than the close of the next business day a proposed order for approval as conforming to the court’s order. Within five days after service, the other party or parties must notify the prevailing party as to whether or not the proposed order is so approved. The opposing party or parties must state any reasons for disapproval. Failure to notify the prevailing party within the time required shall be deemed an approval. The extensions of time based on a method of service provided under any statute or rule do not apply to this rule. [¶]... [¶] The prevailing party must, upon expiration of the five-day period provided for approval, promptly transmit the proposed order to the court together with a summary of any responses of the other parties or a statement that no responses were received.”
“If the prevailing party does not get around to preparing the order, then any other party may do it. (California Rules of Court, Rule [3.1312(d)].) The main ‘sanction, ’ of course, is that the victory won in the presentation of the motion does not ‘go into effect’ until the order is signed, so prevailing parties are pretty good about getting this job done.” (Younger on California Motions (2004 ed.) Ch. 2, Document Preparation and Service, § 2:38, p. 32.)
Of course, the court may issue a minute order in lieu of an attorney-prepared order. “An order is a ‘direction of a court or judge, made or entered in writing, ’ other than a judgment. (C.C.P. 1003; see Passavanti v. Williams (1990) 225 C.A.3d 1602, 1605, 275 C.R. 887 [‘another way of defining an order is the court’s written ruling on a motion’; orders distinguished from judgments]; C.J.E.R., Judges Benchbook, Civil Proceedings: Before Trial 2d, § 6.53 et seq.)” (6 Witkin, Cal. Proc. (5th ed. 2008) Proceedings Without Trial, § 44, p. 466; see also 7 Witkin, Cal. Proc. (5th ed. 2008) Judgment, § 54, p. 589.) “An oral pronouncement of the judge, followed by a minute entry reciting the nature of the motion and adding “Motion Granted” or “Motion Denied, ” is a typical method of deciding motions. (See Simmons v. Superior Court (1959) 52 C.2d 373, 341 P.2d 13.)” (7 Witkin, Cal. Proc., supra, Judgment, § 46, p. 583.) “The court may, however, elect to make a formal order, or direct that such an order be prepared, and entry then consists of filing the signed order with the clerk.... ‘[P]reparation of a written order is now contemplated in the ordinary course of events.’ (Hughey v. Hayward (1994) 24 C.A.4th 206, 209.)... [¶] Even if the court does not direct preparation of an order, one must be prepared whenever a party prevails on a motion.... (C.R.C., Rule 3.1312(a).)... [¶] A trial court’s oral ruling on a motion does not become effective until it is filed in writing with the clerk or entered in the minutes. Accordingly, the trial court may properly file a written order differing from its oral ruling when the ruling has not been entered in the minutes. Furthermore, when the trial court’s minute order expressly indicates that a written order will be filed, only the written order is the effective order.... [¶] One of these methods must be used if the order is to be effective. (See Ketscher v. Superior Court (1970) 9 C.A.3d 601, 604, 88 C.R. 357 [judge’s warning from bench was not an order and disobedience was not punishable contempt].) Sometimes the judge takes both steps; i.e., he or she orally announces an order that is entered in the minutes, and then later signs and files a written order.” (Id. at § 54, pp. 589-590.)
C. Analysis
Based on the foregoing substantive and procedural requirements, and the record before us, we are constrained to conclude that the trial court abused its discretion in ordering a terminating sanction in the present case. First, the court’s oral pronouncement, shrinking the time for compliance with its tentative ruling from 20 days to 10 days, and imposing a monetary sanction of $1,640, was never reduced to an effective order. The prevailing party never prepared an order for defendants’ approval or for the court’s signature and filing. Nor did the court ever memorialize its oral ruling in a minute order. The only minute order presented to us shows that on May 9, 2008, the matter was submitted. Because the court’s oral order was never reduced to writing, it never became effective. There being no effective order, it follows that no order was ever served on defendants. For all intents and purposes, then, defendants had at least 20 days to produce documents and further responses and pay monetary sanctions, as directed in the court’s tentative ruling; however, even that conclusion is put in question by the court’s minute order indicating that the court’s ruling remained submitted, i.e., under consideration.
Second, given the way matters stood, plaintiff’s motion for a terminating sanction was premature when filed on May 21, 2008. At best, defendants’ compliance was due May 29, 2008. The result was that plaintiff’s motion only gave notice that sanctions were predicated on defendant’s failure to produce any documents, or answer any interrogatories, or appear at any depositions. But these deficiencies had been cured by May 29. Defendants produced documents, and further responses to interrogatories, and appeared for depositions. To be sure, the documents and further responses contained other deficiencies; but plaintiff did not amend her motion to give notice of these deficiencies as bases for a terminating sanction, until the hearing on May 30. This is not the notice contemplated by statute or due process.
In addition, the court’s two orders of August 12 do not support a finding of willful disobedience of a court order. One of the August 12 orders confirmed that, as of May 9, 2008, the discovery matters before the court remained under consideration, having been submitted that day. Further, those same matters were resubmitted on May 30. And, the court’s order gave defendants an additional 20 days from the date of that order – August 12, 2008 – to comply with the court’s discovery orders and pay sanctions – in a lesser amount by $400 than the monetary sanction ordered by the court in its May 9 tentative ruling.
In the other order, the court found that “[d]efendants were served with valid court orders requiring them to comply with certain discovery obligations. During argument in another case between family members, this Court asked about the status of discovery in this case. Both parties provided this Court with additional information. [¶] This Court is satisfied that Defendants still have not complied with this Court’s lawful orders.” Putting aside the propriety of finding willful disobedience on the basis of “additional information” gathered after a hearing and while the matter is under submission, so far as this record shows, no lawful orders were ever served on defendants, save perhaps the tentative ruling of May 7 or 8. Indeed, it appears from the first footnote in plaintiff’s “Memorandum in Support of Motion for Evidentiary or Terminating Sanctions, ” that plaintiff’s counsel consistently failed to memorialize rulings as proposed orders, and the court consistently failed to memorialize rulings into minute or written orders.
Finally, the court’s order of August 18 clarifying its conflicting August 12 orders does not support a finding that defendants willfully disobeyed a lawful discovery order. The August 18 order purports to find that the order granting plaintiff’s May 9, 2008 motion to compel discovery “was entered on August 12, 2008, nunc pro tunc to reflect the decision made by this court on 9 May 2008.” Given that the motion to compel was under submission from May 9 to August 12, 2008, we are at a loss to understand how a nunc pro tunc order could give defendants’ adequate notice that a lawful court order had been entered, and willfully disobeyed. In our view, imposition of the most drastic of all discovery sanctions on the basis of such notice does not pass constitutional or statutory muster. (Alliance Bank v. Murray, supra, 161 Cal.App.3d at p. 6; Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at p. 208; see also, e.g., Duggan v. Moss (1979) 98 Cal.App.3d 735, 741 [conditional dismissal sanction was in excess of court’s jurisdiction and therefore void]; cf., O’Brien v. Cseh, supra, 148 Cal.App.3d at p. 962 [“Plaintiff’s rush to compel sanctions against defendant on an ex parte basis was a flagrant violation of due process principles”].) Here, so far as the record shows, no court orders were ever filed, or served on defendants, except perhaps a tentative ruling on a motion to compel that was taken under submission for over three months, and a nunc pro tunc order purporting to turn back the clock and give notice at the same time. “The procedures employed by plaintiffs and the court did not come close to comporting with due process, and did not comply with the requirements of [the] Code of Civil Procedure....” (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at p. 208, citing § 2023, subd. (c), see now, § 2023.040.)
CONCLUSION
On this record, the trial court abused its discretion in granting a terminating sanction and striking defendants’ answers. The entry of default was therefore improper and the ensuing default judgment is void.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to reinstate defendant’s answer. Defendant shall have costs on appeal.
WE CONCUR: Premo, Acting P.J., Elia, J.