Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV17827
BLEASE, J.
Plaintiff and appellant Ron Wright appeals from a judgment in favor of defendants County of Placer, Mike Harris, Fred Yeager, Kathy Wisted, Evelyn Canis, Rex Bloomfield, Anthony LaBouff, Dennis Meeh, Joseph McInerney, and Richard Armstrong following an order dismissing Wright’s complaint, the order being a discovery sanction for Wright’s failure to appear for his deposition.
Wright appears in propria persona on appeal, as he did below. He claims the trial court’s order granting terminating sanctions was an abuse of discretion. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wright initiated this action in Sacramento County on October 17, 2003. The complaint states numerous causes of action against Placer County (County) and certain of its employees. The causes of action relate to a code enforcement action County took against real property owned by plaintiff. Venue was later transferred to Placer County.
The first amended complaint contains 18 causes of action and is 113 pages long.
Plaintiff’s complaint showed his mailing address was in Foresthill, California. Approximately two years after plaintiff initiated the action, in September 2005, he filed a change of address showing a mailing address in Kasilof, Alaska.
Following a case management conference on August 8, 2005, the trial court ordered the trial be set for March 7, 2006. Accordingly, the discovery cutoff was February 6, 2006. (Code Civ. Proc., § 2024.020.)
County propounded form interrogatories and a document request on October 14, 2005, which were due to be answered on November 14, 2005. On November 18, 2005, County sent a letter to plaintiff requesting available dates in December or the first two weeks in January for plaintiff’s deposition. The letter also referenced the fact that plaintiff’s discovery responses had not yet been received and were overdue.
For ease of reference, we will refer to the defendants collectively as County.
At the request of plaintiff’s secretary, County agreed to extend plaintiff’s time to answer the discovery requests to December 5, 2005. On December 8, County notified plaintiff it still had not received the requested discovery, nor had plaintiff informed County of any dates on which he would be available to have his deposition taken. As a result, County noticed plaintiff’s deposition for January 19, 2006.
On December 15, plaintiff requested more time to respond to the discovery requests. He claimed he had been out of state for several weeks and had just received the discovery requests. Despite having just returned from out of state, plaintiff said he could not travel to California for his deposition for health reasons. County refused to agree to any further extensions of time to answer discovery because of the impending discovery cutoff. County also informed plaintiff he would be required to appear in person at his deposition, but expressed some flexibility about the date. On December 21, 2005, County filed a motion to compel responses to the interrogatories and document request.
On December 27, 2005, plaintiff’s secretary informed County that plaintiff would not appear in person for his deposition regardless of when it was scheduled. On December 29, 2005, plaintiff sent a letter to County complaining that he was being harassed about his deposition, and asking not to be bothered any more. He stated, “[y]ou will need to get a court order prior to noticing and setting my deposition in California . . . .” Consequently, on January 5, 2006, County filed, on shortened time, a motion to compel plaintiff’s deposition in California.
In its motion to compel, County cited the fact that plaintiff had chosen the forum, but had to date provided no discovery. At the hearing on the motion, the trial court told plaintiff that he had initiated the lawsuit and had to submit himself to the jurisdiction of the court. The trial court indicated that the numerous Placer County officials who had been named as defendants in the action had a right to be present at the deposition, and it would be unreasonable to expect them all to travel to Alaska for his deposition. Finally, the trial court noted it might be more considerate of plaintiff’s position if he were not already delinquent in his discovery responses. The trial court granted the motion to compel plaintiff’s deposition in California on January 19, 2006.
Plaintiff informed County by letter on January 17 that he would not appear at his deposition. Plaintiff did not appear for his deposition, consequently County moved for discovery sanctions. The motion was based on plaintiff’s failure to respond to discovery and his willful failure to attend his deposition after being ordered to do so. County requested the court impose a terminating sanction by dismissing plaintiff’s complaint, or in the alternative prohibit plaintiff from testifying at trial.
The trial court found plaintiff’s failure to appear at his deposition willful and found the failure to appear continued a “pattern of refusal to participate in discovery.” The trial court granted terminating sanctions, ordered plaintiff’s complaint dismissed, and entered judgment in favor of defendants.
DISCUSSION
Plaintiff purports to appeal from every adverse order of the trial court. Because we conclude the trial court did not abuse its discretion either in compelling plaintiff’s deposition in California or in imposing terminating sanctions, we need not consider plaintiff’s other arguments.
In particular plaintiff purports to appeal from an order denying an ex parte application for immediate emergency injunctive relief. No record cite is provided for this order, and we are able to find no such order in the record. The transcript on appeal must contain any order from which an appeal is taken. (Rules of Court, rule 8.120(b)(1)(C).)
I
Order Compelling Deposition
The discovery statutes provide that a party may be ordered by the court to be deposed at a location more than 75 miles from the deponent’s residence. (Code Civ. Proc., § 2025.260, subd. (a).) The granting of such relief is within the discretion of the trial court, and is based upon its determination of whether the order is in the interests of justice. (§ 2025.260, subd. (b).) The factors to be considered are: “(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. [¶ and] (7) The whereabouts of the deponent at the time for which the deposition is scheduled.” (§ 2025.260, subd. (b).)
References to an undesignated section are to the Code of Civil Procedure unless otherwise noted.
In this case, plaintiff voluntarily brought his action in California, and gave no indication he would not be present at the trial in California, especially since he was representing himself. Because plaintiff had not answered any of the written discovery propounded by defendants, it was not feasible to depose him by written questions, or to obtain discovery through another method. County sought only the deposition of plaintiff, and because there were 10 defendants and only one plaintiff, the relative costs of conducting the deposition in Alaska when all the defendants were located in California weighed in favor of taking the deposition in California.
The decision to order plaintiff’s deposition in California was a matter for the trial court’s discretion, which we will not disturb absent abuse of that discretion. (§ 2025.260, subd. (b); Mobil Oil Corp. v. Superior Court (1976) 59 Cal.App.3d 293, 303.) Based upon the above factors, we conclude there was no abuse of discretion here.
II
Terminating Sanctions
Only two facts are absolutely necessary before a trial court may impose terminating sanctions for discovery abuse. There must be a failure to comply, and the failure must be willful. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Terminating sanctions should not be ordered lightly, but are justified where the violation is willful, is preceded by a history of abuse, and where less severe sanctions would not produce compliance. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)
We will reverse the trial court’s decision to impose discovery sanctions only where the court exercised its discretion in an arbitrary or capricious manner. (R.S. Creative, Inc. v. Creative Cotton, Ltd., supra, 75 Cal.App.4th at p. 496.)
In the present case, the trial court found plaintiff’s failure to comply with his ordered deposition was willful. The finding is supported by plaintiff’s January 17, 2006, letter informing County he would not appear for his deposition. Moreover, plaintiff had a history of failing to provide discovery, and of thwarting County’s efforts to depose him. Because County had been unsuccessful in obtaining discovery from plaintiff, and the discovery cutoff was only a few days away, less severe sanctions were unlikely to produce plaintiff’s compliance with any discovery request.
Plaintiff apparently had provided some answers to the written discovery by the date of the hearing on the motion for sanctions. However, the answers contained objections, which had been waived for failure to serve timely answers, and were incomplete. (§§ 2030.290, 2031.300.)
Under these circumstances we are unable to say the trial court’s exercise of discretion was arbitrary or capricious.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., RAYE, J.