Oatey v. Caballero CA4/1

Filed 2/23/15 Oatey v. Caballero CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DIANE OATEY, D065109

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2012-00052930-
CU-PN-NC)
STEPHANIE M. CABALLERO etc.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,

Jacqueline M. Stern, Judge. Affirmed.

Diane Oatey, in pro. per., for Plaintiff and Appellant.

Schonfeld & Bertsche and Alan H. Schonfeld for Defendant and Respondent.

Diane Oatey (Plaintiff) appeals from a judgment of the superior court in favor of

Stephanie M. Caballero, individually and doing business as The Law Office Stephanie M.

Caballero (Defendant), dismissing the action and awarding Defendant $8,220 in sanctions

and $645 in costs. We affirm the judgment.
 I.

BACKGROUND FACTS AND PROCEDURE

In April 2012, Plaintiff filed a complaint against Defendant, asserting one cause of

action for professional negligence. Plaintiff alleged that she retained Defendant, an

attorney, to provide professional services related to a surrogacy contract and the

procurement of a proper surrogate, but failed to use reasonable skill and care in providing

these services, causing Plaintiff damages in excess of $2.5 million.

A. Defendant's First Round of Discovery and the April 2013 Order Compelling
Responses

In October 2012 Defendant served the following discovery requests on Plaintiff:

form interrogatories (set one), special interrogatories (set one) and request for production

of documents (set one). Having received no responses to the discovery requests (or to the

three meet and confer letters and one telephone call to Plaintiff's attorney), in December

2012 Defendant filed a motion to compel Plaintiff to respond without objections to these

discovery requests and for attorney fees and costs.

Plaintiff did not oppose the motion, and in April 2013 the court granted it,

ordering that Plaintiff provide verified responses without objections and responsive

documents within 10 days and pay sanctions of $960 (April 2013 Order). As we discuss

in greater detail post, after at least three meet and confer letters, Plaintiff never provided

the discovery requests or paid the sanctions required in the April 2013 Order.

2
B. Plaintiff's Counsel Withdraws

By motion filed in May 20, 2013, the attorney then representing Plaintiff,

Timothy P. Peabody, requested an order relieving him as counsel. In support of his

motion, Peabody testified that there had been a breakdown in the attorney-client

relationship; there were issues of outstanding discovery, and despite his "admonitions" to

Plaintiff, the discovery issues had not been resolved; Plaintiff had expressed to him

"concerns" about the legal fees; Plaintiff had failed to find new counsel or to agree to

represent herself; and his continued representation of Plaintiff would result in a conflict

of interest. Plaintiff opposed the motion, responding (with argument and unauthenticated

exhibits, but no evidence) to Peabody's testimony and emphasizing the prejudice she

would suffer if Peabody was relieved as counsel. In particular, Plaintiff argued that she

would be prejudiced if she were left without an attorney in June 2013 given the court's

April 2013 Order to provide discovery, Defendant's pending motion for summary

judgment in November 2013 and the existing trial date in December 2013.

Following a hearing at which Plaintiff participated, the court granted Peabody's

motion, getting a commitment from Plaintiff and Peabody that they would meet on

July 10, 2013, in order to effect the transition of the files.1 A minute order was filed the

day of the hearing on June 28, 2013, and a signed order was filed July 30, 2013 (Peabody

Order). As expressly required by the court's orders (and Cal. Rules of Court,

1 From what we can tell this meeting did not take place, despite the court's best
efforts and the agreements on the record

3
rule 3.1362(e)), Peabody served Plaintiff with a copy of the Peabody Order on August 5,

2013.

After the hearing on Peabody's motion, but before entry of the signed order, on

July 1 and 15, 2013, Defendant sent Plaintiff (through Peabody, who was still her

attorney of record) two meet and confer letters in an effort to obtain Plaintiff's

compliance with the April 2013 Order — performance of which had been ordered by

April 22, 2013. Defendant specifically asked Peabody to forward the letters to Plaintiff.

In response to the second letter, on July 15, 2013, Peabody replied that he would not be

responding to discovery.

C. Defendant's Attempts at Further Discovery

Meanwhile, on May 22, 2013, Defendant served Plaintiff (through Peabody who

was still counsel of record) with a second set of discovery: request for admissions (set

one), form interrogatories (set two), request for production of documents (set two) and

special interrogatories (set two). After the date for timely responses and not having

received anything, Defendant wrote a total of three meet and confer letters: two to

Peabody while he was representing Plaintiff and one to Plaintiff after the court granted

Peabody's motion to withdraw.

The day after serving these discovery requests (while Peabody was still counsel of

record), Defendant caused to be served on Plaintiff's psychiatrist a subpoena for

Plaintiff's psychiatric records. As Defendant explained, Plaintiff had alleged " 'severe

emotional distress,' " yet she had not responded to any discovery and trial was a little

4
more than six months away. The psychiatrist declined to produce Plaintiff's records

based on Plaintiff's instruction to him that she did not authorize the release of her records.

On July 15, 2013, Defendant served a notice requiring Plaintiff to appear for her

deposition and to produce documents on July 30, 2013. (Both of these dates are after the

court had granted Peabody's motion to withdraw, before the Peabody Order had been

filed or served, and after Peabody told Defendant he would not be responding to

discovery.) At some point in time prior to July 26, during Defendant's efforts to secure

Plaintiff's attendance at the deposition, when Peabody told Defendant he would not be

appearing, Defendant asked Peabody whether he had forwarded the notice to Plaintiff.

Having received no answer from Peabody, Defendant wrote Peabody on July 26, again

asking whether there would be an appearance on July 30. Defendant heard nothing, and

indeed neither Peabody nor Plaintiff appeared at the deposition and no documents were

produced.

D. Defendant's Sanctions Motion

On August 8, 2013 — the same day Defendant received a conformed copy of the

court's order authorizing Peabody's withdrawal as Plaintiff's counsel — Defendant wrote

directly to Plaintiff,2 setting forth her various defaults in an attempt to meet and confer in

2 Until that date, because Peabody was Plaintiff's counsel of record, Defendant's
counsel was precluded from communicating "directly or indirectly" with Plaintiff about
the litigation. (Rules Prof. Conduct, rule 2-100 (rule 2-100).)

5
order to resolve the defaults and prepare the case for trial.3 Defendant also advised

Plaintiff that, unless she complied with the court's April 2013 Order and the later

discovery requests — each of which was set forth in detail in the letter and its enclosures

— within a week, Defendant would file a motion requesting terminating, issue,

evidentiary and monetary sanctions.

In fact, Defendant took no immediate action, but when Plaintiff had failed to

respond in any manner almost one month later, Defendant filed a motion for terminating,

issue, evidentiary and monetary sanctions (sanctions motion). The bases of that portion

of the motion seeking terminating sanctions included Plaintiff's failure to have complied

with the April 2013 Order, Plaintiff's refusal to participate in discovery and Plaintiff's

interference with Defendant's attempt to conduct third-party discovery. In support of the

motion, Defendant submitted a memorandum of points and authorities, a detailed 18-page

declaration from counsel with personal knowledge, a separate statement (in support of the

request for issue and evidentiary sanctions), a request for judicial notice and a notice of

lodgment with 33 exhibits.

Defendant served Plaintiff with the sanctions motion on September 3, 2013, giving

more than five weeks' notice that the motion would be heard on October 11, 2013.

During this five-week time period, Plaintiff prepared at least the following pleadings with

3 Defendant's letter is four pages and advises Plaintiff of six independent defaults —
including noncompliance with the court's April 2013 Order and failure to respond to
various discovery requests served after the April 2013 Order. As a courtesy, Defendant
included with the letter another 63 pages containing copies of the outstanding discovery
and a pending discovery motion that required Plaintiff's immediate attention.

6
supporting documents: (1) a 14-page ex parte application for an order correcting the

minute order that preceded the April 2013 Order; (2) a related notice of entry of an order

denying the ex parte application; (3) a 553-page first amended complaint;4 (4) a related

nine-page motion for leave to file a first amended complaint; (5) a related 26-page ex

parte application for an order shortening time for the filing and service of the motion for

leave to file a first amended complaint;5 (6) a 2,969-page motion to continue the trial

date from December 6, 2013, until March 31, 2014; and (7) a four-page notice of

confirmation of court call appearance.

Meanwhile, Plaintiff failed to prepare and file a timely opposition to the sanctions

motion to be heard on October 11, 2013. Instead, on October 8, 2013, Plaintiff filed an

ex parte application (to be heard the following afternoon, October 9, 2013, less than two

days before the hearing) seeking, in part, an order allowing her to file and serve an

opposition to the sanctions motion.6 The court denied Plaintiff's request on the basis she

had presented "no excuse/reason to shorten time two days prior to the hearing."7

4 The original complaint contained 25 numbered paragraphs; asserted one cause of
action against one named defendant; and had 59 pages, including exhibits. The proposed
first amended complaint contained 104 numbered paragraphs; asserted six causes of
action against seven named defendants; and had 553 pages, with exhibits.

5 The court granted this application, thereby allowing Plaintiff's motion to be heard
on the same date as Defendant's sanctions motion.

6 In addition, in her ex parte application, Plaintiff also requested orders of the court
to shorten time for her to file (1) "moving papers" for an unidentified motion, (2) a reply
to Defendant's opposition to her motion for leave to file a first amended complaint and
7
 The court issued a tentative ruling granting the sanctions motion, and at the

assigned time on October 11, 2013, the court entertained oral argument — including

hearing at length from Plaintiff, even though she had failed to file a timely opposition.

The court ruled as follows:

"The court will not consider Plaintiff's late opposition declaration filed on
Oct. 9, 2013.

"Plaintiff appeared ex parte on Oct. 9, 2013 seeking leave to file and have
the Court consider her late opposition to [the sanctions motion]. That ex
parte application was denied as the Court found no good cause in the ex
parte papers for the requested relief.

"Plaintiff filed her opposition declaration on Oct. 9, 2013 following the ex
parte hearing. The Court will not consider the declaration in ruling on this
motion as it was not timely filed. In fact, it was filed so late that
Defendant[ has] no opportunity to file and serve a timely reply to that
opposition declaration as reply was due Oct. 4, 2013.

"The Defendant['s] unopposed Request for Judicial Notice is granted.

"Defendant['s] unopposed [sanctions motion] is granted pursuant to C[ode
of ]C[ivil ]P[rocedure section] 2023.030[, subdivision ](d). The Court
dismisses Plaintiff's complaint . . . .

"The prerequisites for imposition of terminating sanctions are that there was
a failure to comply with a discovery order and the failure was willful.
(Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163
Cal.App.4th 1093, 1102.) The record before the Court is sufficient to
demonstrate both factors.

(3) a reply to Defendant's opposition to her motion to continue the trial date for three and
a half months.

7 Despite the court's ruling, the record on appeal does contain 366 pages of what
Plaintiff contends is her opposition to the sanctions motion — i.e., a declaration with
attached exhibits A through Q. The first page of the declaration has three stamps from
the clerk's office: "RECEIVED" October 9, 2013, at 10:11 a.m.; "FILED" October 9,
2013, at 10:19 a.m.; and "FILED ON DEMAND."

8
 "On April 12, 2013, this Court granted Defendant['s] unopposed Motion to
Compel Responses to the first set of Form and Special Interrogatories and
Requests for Production of Documents[,] ordering Plaintiff to serve verified
responses without objections to Defendant['s] discovery requests within ten
days of the hearing. Defendant[s] lodged exhibit B shows that Notice of
Entry of the [April 2013 O]rder granting that motion was served on
Plaintiff's prior attorney [Peabody] on April 16, 2013. The record also
shows that Plaintiff herself had notice of that order. [Citation.] However,
according to moving counsel's supporting declaration, Plaintiff failed to
comply with the [April 2013 O]rder. Thus, there is ample evidence in the
record showing a failure to obey this Court's order and that failure was
willful.

"The Court can also consider, in ruling on this motion, evidence showing
Plaintiff has engaged in continual and additional violations of the discovery
statutes. (See Liberty Mutual[ Fire Ins. Co. v. LcL Administrators, Inc.],
supra, [163 Cal.App.4th 1093,] 1106[.]) According to Moving counsel's
declaration, in addition to failing to obey this Court's April [2013 O]rder,
Plaintiff has not responded to [four sets of discovery requests], all of which
were served on Plaintiff on May 22, 2013. [Citation.] In addition, Plaintiff
failed to appear at her properly noticed July 30, 2013 deposition and failed
to respond to Defen[dant's] counsel's request to her to provide alternative
deposition dates. [Citation.]

"In addition to the above terminating sanction, the Court orders Plaintiff to
pay additional monetary sanctions in the amount of $7,260.00 within 45
days of this hearing date. . . ." (Italics added.)

A week later, the court entered a judgment of dismissal, repeating the prior awards of

monetary sanctions and awarding costs.

Plaintiff timely appealed.

9
 II.

DISCUSSION

Plaintiff presents three arguments on appeal: (1) the judgment should be set aside

pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b));8

(2) the court abused its discretion in granting the sanctions motion; and (3) the court

abused its discretion in waiting 33 days to sign the order granting Peabody's motion to

withdraw as counsel. None is persuasive.9

A. Section 473(b) Relief Is Not Available in the Court of Appeal in the First Instance

Relying on section 473(b),10 Plaintiff asks us to "rescind[]" the judgment and

"reinstate[]" the case against Defendant. (Capitalization omitted.) The problem with

Plaintiff's argument is that the procedure and remedy in section 473(b) are available only

in superior court.

Section 473 (which deals with "relief from judgment" at § 473, subd. (b)) is found

at part 2 (which deals with "civil actions") of title 6 (which deals with "pleadings in civil

8 All further unidentified statutory references are to the Code of Civil Procedure.

9 Plaintiff's failure to have filed an opposition to the sanctions motion is a technical
forfeiture of her right to argue on appeal that the trial court erred in granting the motion.
(Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602.) However, given the
significance of terminating sanctions and the trial court's rulings on the merits of the
sanctions motion, we exercise our discretion to reach the merits of Plaintiff's appeal.

10 The pertinent language of section 473(b) provides: "The court may, upon any
terms as may be just, relieve a party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect."

10
actions") of the Code of Civil Procedure. In this regard, "[a] civil action is prosecuted by

one party against another for the declaration, enforcement or protection of a right, or the

redress or prevention of a wrong." (§ 30.) Also within part 2 (which deals with civil

actions) is title 13 (which deals with "appeals") and provides at section 901 that "[a]

judgment or order in a civil action . . . may be reviewed as prescribed in this

title [13] . . . ." Accordingly, in a civil action, a party may seek relief from judgment

under section 473 and a party may take an appeal under title 13; but we are unaware of

any authority entitling a party to seek section 473 relief in an appeal. This understanding

is reinforced by our Supreme Court, which tells us that relief under section 473 " 'is

addressed to the sound discretion of the trial court.' " (Carroll v. Abbott Laboratories,

Inc. (1982) 32 Cal.3d 892, 897, italics added (Carroll).)

Here, however, because Plaintiff never asked the trial court to exercise its

discretion under section 473 in the first instance, there is no exercise of discretion for us

to review on appeal.

B. Plaintiff Has Not Met Her Burden of Establishing an Abuse of Discretion in
Granting the Sanctions Motion

Plaintiff argues that the trial court erred in awarding both terminating sanctions

and monetary sanctions. We disagree.

We review for an abuse of discretion a trial court's decision to issue either

terminating or monetary sanctions (Liberty Mutual Fire Ins. Co. v. LcL Administrators,

Inc., supra, 163 Cal.App.4th 1093, 1102 (Liberty Mutual)); and Plaintiff and Defendant

agree as to our application of this standard. The appellant has the burden of establishing

11
an abuse of discretion, keeping in mind that the trial court's judgment is " 'presumed

correct.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 564 (Denham).)

An appellant does not meet her burden by arguing merely that a different ruling

would have been better or more equitable. Rather, a trial court abuses its discretion only

if, based on the applicable law and considering all of the relevant circumstances, the

decision " 'exceeds the bounds of reason.' " (Denham, supra, 2 Cal.3d at p. 566.) As

particularly applicable here, given the evidence before the trial court, we must affirm so

long as the record contains "sufficient evidence for us to conclude that the action of the

trial court was within the permissible range of options set by the legal criteria." (Dorman

v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815; see Quantum Cooking Concepts, Inc.

v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 932 [no abuse of discretion where the

ruling " ' "falls within the permissible range of options set by the legal criteria" ' "].)

In determining the sufficiency of the evidence, as an appellate court we "may not

weigh the evidence or consider the credibility of witnesses. Instead, the evidence most

favorable to [the respondent] must be accepted as true and conflicting evidence must be

disregarded[,] . . . 'indulging every legitimate inference which may be drawn from the

evidence in [the respondent's] favor . . . .' " (Campbell v. General Motors Corp. (1982)

32 Cal.3d 112, 118.) The testimony of a single witness may be sufficient (In re Marriage

of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted

evidence in favor of an appellant does not establish the fact for which the evidence was

submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890). The issue is not

whether there is evidence in the record to support a different finding, but whether there is

12
evidence that, if believed, would support the trier of fact's finding. (Bowers v. Bernards

(1984) 150 Cal.App.3d 870, 872-873 (Bowers).)

1. Terminating Sanctions

" ' " 'Only two facts are absolutely prerequisite to imposition of the [terminating]

sanction: (1) there must be a failure to comply [with a discovery order] . . . and (2) the

failure must be wil[l]ful.' " ' " (Liberty Mutual, supra, 163 Cal.App.4th at p. 1102.) The

record here contains substantial evidence of both of these facts — as well as others that

support the dismissal of the action.

a. Plaintiff Failed to Comply with the April 2013 Order

The April 2013 Order required Plaintiff to provide to Defendant — no later than

April 22, 2013 — verified responses without objections to form interrogatories, special

interrogatories and requests for production of documents; responsive documents; and

$960 in sanctions. Defendant's counsel testified that as of August 31, 2013, "there has

been no compliance whatsoever by Plaintiff with the Court's April [] 2013 Order."

Consistently, the record contains letters dated July 15 and July 30, 2013, indicating

Plaintiff had not complied with the April 2013 Order; and on July 15, 2013, Peabody (the

attorney then representing Plaintiff) advised Defendant in writing, "I will not be

responding to discovery."11

11 At the time Peabody wrote this statement, the court had granted his motion to
withdraw — subject to obtaining and serving Plaintiff with a written order — but not yet
filed the Peabody order. Much of Plaintiff's brief is directed to blaming Peabody for
failing to comply with the April 2013 Order or to blaming Defendant for communicating
with Peabody rather with her directly prior to entry and service of the Peabody Order in
August 2013. As noted ante, however, Defendant's counsel was precluded from
13
 In her brief, Plaintiff contends that she complied with the April 2013 Order by

"personally serv[ing] on [Defendant] and fil[ing] with the clerk . . . 2559 pages of signed,

verified, and numbered discovery responses, without objections dated April 21, 2013."

The record on appeal does not support Plaintiff's contention. First, each of the 16 sets of

responses contains four pages of objections.12 Second, none of the 16 sets of responses

contains an attorney's signature; yet the caption of each set of discovery responses

contains Peabody's firm and contact information, and each of the signature blocks is set

up for Peabody's signature, but is blank.13 Third, the record reference provided by

Plaintiff indicates that these responses were served on September 23, 2013, as exhibits in

support of Plaintiff's motion to continue the trial, not as discovery responses.14 Fourth,

although not cited by Plaintiff, the record does contain a proof of service for the

communicating "directly or indirectly" with Plaintiff until after the court filed the
Peabody Order in August 2013 (rule 2-100); and Defendant is not responsible for (and
should not suffer as a result of) whatever difficulties existed between Plaintiff and
Peabody. In any event, the April 2013 Order required compliance no later than April 22,
2013; yet Peabody did not file his motion to withdraw until four weeks after required
compliance on May 20, 2013, and the court did not orally grant Peabody's motion until
nine weeks after required compliance on June 28, 2013.

12 Plaintiff does not explain how or why she had 16 sets of responses, given that
Defendant had not sent out 16 sets of requests.

13 Each of the 16 sets of responses contains Plaintiff's verification with a typed date
of "April 21, 2013." A reasonable inference is that these 16 sets were drafts prepared by
Peabody and forwarded to Plaintiff, who never returned them to Peabody.

14 This may explain why Plaintiff argues on appeal that she "served on [Defendant]
and filed with the clerk" the 2,559 pages of discovery responses. (Italics added.) Had
Plaintiff timely responded, the responses would not have been filed, only served.

14
discovery responses dated April 22, 2013 (filed October 1, 2013), but it contains enough

inconsistencies for the trial court to have fully discredited Plaintiff's contention that this

proof of service reflects compliance with the April 2013 Order: the caption page contains

Plaintiff's contact information, yet on April 22, 2013, Peabody was representing Plaintiff;

the person who signed the proof of service is the person who signed at least 19 of

Plaintiff's proofs of service in the record only after Plaintiff began representing herself;

and service was effected only on Peabody, Peabody's legal assistant and Plaintiff herself,

with no mention of Defendant. Finally, on April 24, 2013, Plaintiff was still asking

Peabody when the discovery responses were due, and on May 1, 2013, Plaintiff was still

forwarding Peabody draft responses to the outstanding discovery requests.

At oral argument, Plaintiff changed her focus, suggesting that because Peabody

had complied with the original discovery requests by serving signed responses on

January 11, 2013, either she always had been in compliance with the April 2013 Order or

the April 2013 Order was issued in error. Indeed, the record does contain three sets of

discovery responses that appear to be signed by Peabody with proofs of service dated

January 11, 2013. However, they do not comply with the April 2013 Order, which

required Plaintiff to have served "[v]erified responses without objections" no later than

April 22, 2013. Here, the January 11, 2013 responses both are unverified and contain

pages of objections.15 Additionally, in her opposition to Peabody's motion to withdraw

15 Even without the requirements of the April 2013 Order, Plaintiff's January 11,
2013 responses were improper, because "[u]nsworn responses are tantamount to no
responses at all." (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)
15
as Plaintiff's counsel (filed in June 2013), Plaintiff submitted evidence indicating that, on

January 21, 2013, (10 days after Peabody served the unverified responses), Plaintiff

believed that that the responses provided by Peabody were not "done correctly." The

January 11, 2013 responses did not comply with the requirements of the April 2013

Order.

In closing, we note that none of the 16 sets of unsigned verified responses dated

April 2013 (relied on by Plaintiff in her brief) is consistent with any of the three sets of

signed unverified responses dated January 2013 (relied on by Plaintiff at oral argument).

For these reasons, substantial evidence supports the court's finding that Plaintiff

failed to comply with the April 2013 Order.

b. Plaintiff's Failure to Comply with the April 2013 Order Was Willful

Although Plaintiff does not directly argue that the failure to comply with the April

2013 Order was not willful, she implies a lack of willfulness by placing the blame on

Peabody, Defendant's counsel and even the court (see pt. II.C., post) for the lack of

discovery responses. In determining willfulness in the context of failing to comply with

discovery, Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 teaches:

"Lack of diligence may be deemed willful in the sense that the party
understood his obligation, had the ability to comply, and failed to comply.
[Citation.] A willful failure does not necessarily include a wrongful
intention to disobey discovery rules. A conscious or intentional failure to
act, as distinguished from accidental or involuntary noncompliance, is

Defendant timely raised this objection in two unsuccessful meet and confer efforts, which
Defendant submitted as evidence of Plaintiff's discovery abuses in support of the
sanctions motion.

16
 sufficient to invoke a penalty." (Id. at pp. 787-788; see Sauer v. Superior
Court (1987) 195 Cal.App.3d 213, 227-228 (Sauer).)

Here, Peabody (who remained Plaintiff's attorney of record until August 5, 2013)

was served with the April 2013 Order on April 16, 2013. Defendant later sent Peabody

two letters, reminding him of the April 2013 Order and its past due deadline — to which

Peabody replied, "I will not be responding to discovery" — all at a time when he was still

Plaintiff's attorney of record. Notably, even if we credit Plaintiff's contention that

Peabody's performance of his professional duties fell below the standard of care,16

because Plaintiff was not " 'effectually and unknowingly deprived of representation,' "

Peabody's actions are " ' "imputed to [Plaintiff] and may not be offered by the latter as a

basis for relief" ' " in failing to respond to discovery. (Sauer, supra, 195 Cal.App.3d at

p. 231; see Carroll, supra, 32 Cal.3d at p. 898 [negligence of attorney is imputed to

client].)

Moreover, at all times, Plaintiff herself knew of the April 2013 Order and its

requirements, including that it required obedience in late April. During the time period

April 22-24, 2013, when Peabody was still representing Plaintiff (a full month before he

filed his motion to withdraw), Plaintiff wrote Peabody, stating in different e-mails: "I am

very concerned since the judge made an order to produce discovery by tomorrow . . .";

"Please communicate with me since there is a deadline for this discovery . . ."; "Can you

tell me when the discovery is due? Is there an additional 5 days for the mailing?"; and

16 The trial court made no such finding, and we express no opinion. We assume this
fact solely for the purpose of this argument.

17
"When is the discovery due? Are you planning on getting it in on time?" Then, in her

June 2013 opposition to Peabody's motion to withdraw, Plaintiff affirmatively

acknowledged both the April 2013 Order and her noncompliance with it.17 Finally —

and most persuasively — once when Plaintiff was of record as representing herself, in

August 2013 Defendant delivered to Plaintiff a meet and confer letter regarding her

noncompliance with the April 2013 Order, including a copy of the April 2013 Order and

the related discovery requests.18 Plaintiff never responded to Defendant's August 2013

letter.

For these reasons, substantial evidence supports the court's finding that Plaintiff's

failure to comply with the April 2013 Order was willful.

c. The Terminating Sanction Was Not an Abuse of Discretion

Plaintiff argues that the dismissal of action as a sanction for discovery abuses is

excessive and punitive. As the Liberty Mutual opinion describes our task, "[t]he question

before us ' "is not whether the trial court should have imposed a lesser sanction; rather,

the question is whether the trial court abused its discretion by imposing the sanction it

chose." ' " (Liberty Mutual, supra, 163 Cal.App.4th at p. 1105.) Given the record here,

Plaintiff has not established an abuse of discretion.

17 Indeed, Plaintiff included a copy of the April 2013 Order as an exhibit to her June
2013 opposition.

18 In this August 2013 letter, Defendant also asked Plaintiff to comply with other
outstanding discovery requests from May and July 2013, providing additional copies of
the requests and advising Plaintiff that if she did not respond within a week Defendant
would bring a motion for terminating, issue, evidentiary and monetary sanctions.

18
 We are further guided by the understanding that "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." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262,

279-280 (Mileikowsky).) Here, there was a history of abuse that resulted in the April

2013 Order. (Pt. I.A., ante.) The violation of the April 2013 Order was willful.

(Pt. II.B.1.b., ante.) Finally, Plaintiff persisted in her pattern of failing to timely and

meaningfully participate in discovery even after the April 2013 Order: Plaintiff failed to

respond to a second round of written discovery;19 Plaintiff failed to attend her properly

noticed deposition;20 and Plaintiff interfered with Defendant's efforts to obtain, and

successfully precluded Defendant from obtaining, records from Plaintiff's psychiatrist

19 In May 2013, Defendant served Peabody with requests for admissions (set one)
(six requests); form interrogatories (set two) (one interrogatory); special interrogatories
(set two) (22 interrogatories); and request for production of documents (set two) (24
requests). Defendant received no responses. In July 2013, Defendant made multiple
efforts to meet and confer in writing, but received no discovery responses. Once Plaintiff
was representing herself, in August 2013 Defendant again attempted to obtain discovery
responses by writing Plaintiff directly, advising her that she was in default, providing her
additional copies of the outstanding discovery and advising her that if she did not respond
within a week he was going to file a motion for sanctions. Plaintiff did not respond.

20 As with the other discovery requests after the April 2013 Order, Defendant served
the notice of deposition on Peabody at a time when he was counsel of record in May
2013, and Plaintiff did not appear; Defendant made numerous attempts to meet and
confer with Peabody (including a letter in July 2013), and Plaintiff still did not appear;
when Plaintiff began representing herself, Defendant wrote her a meet and confer letter in
August 2013 (including a copy of the original notice and inviting Plaintiff to suggest a
convenient date), and Plaintiff never replied.

19
despite Plaintiff's claim for "severe emotional distress."21 The trial court expressly relied

on these "continual and additional violations of the discovery statutes" in determining the

sanctions to be awarded.

Significantly, Defendant also made a strong showing of prejudice. Defendant first

described the need for the discovery responses, including those that preceded the April

2013 Order. Defendant then set forth her diligence both in requesting discovery and in

following up when deadlines passed with no responses. Finally, Defendant explained

that, as a direct result of Plaintiff's failure to participate in discovery, Defendant had been

precluded from bringing a potentially dispositive motion within the existing court-

ordered deadlines and Defendant would have to go to trial just three months later not

having been provided any discovery on a claim for over $2.5 million.

Plaintiff's persistence in failing to provide discovery even after the lesser sanctions

awarded in the April 2013 Order (which Plaintiff has ignored) is sufficient justification

for the terminating sanctions. (Liberty Mutual, supra, 163 Cal.App.4th at p. 1106 ["the

sanctioned party's history as a repeat offender is not only relevant, but also significant, in

deciding whether to impose terminating sanctions"]; Mileikowsky, supra, 128

Cal.App.4th at pp. 279-280.) The trial court was not required to allow Plaintiff to

continue indefinitely her disregard for court process in an action she filed. (Liberty

Mutual, at p. 1106; Mileikowsky, at p. 280.)

21 Defendant caused a third party subpoena to be served on Plaintiff's psychiatrist,
Plaintiff instructed the psychiatrist not to release her records, Defendant's two meet and
confer letters to Peabody went unanswered, and Defendant never received the records.
20
 2. Monetary Sanctions

Plaintiff next contends the court abused its discretion in awarding sanctions of

$8,865 — comprised of $960 in sanctions from the hearing that resulted in the April 2013

Order, $7,260 in sanctions from the hearing that resulted in the terminating sanctions and

$645 "for attorney's fees."

Initially, we note that the court did not award $645 either for attorney's fees or as

sanctions. Rather, after entry of judgment and following the timely filing of Defendant's

memorandum of costs in which Defendant claimed $495 in filing and motion fees22 and

$150 in jury fees, the clerk entered the amount of $645 in costs in the blank the court left

in the judgment. In any event, Plaintiff has forfeited the right to challenge the award of

costs on appeal by failing to have challenged the memorandum of costs in the trial court.

(Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447 ["failure to file a motion

to tax costs constitutes a waiver of the right to object"]; Douglas v. Willis (1994) 27

Cal.App.4th 287, 289.)

With regard to the actual monetary sanctions awarded in the judgment ($960 +

$7,260 = $8,220), Plaintiff repeats many of her arguments blaming Peabody, Defendant's

counsel and the court (see pt. II.C., post) for the noncompliance with the April 2013

Order and the failure to participate in discovery after April 2013. In so doing, Plaintiff is

essentially contending on appeal that the trial court should have credited her evidence of

22 Defendant requested a filing fee for only one motion, which did not include either
the motion to compel discovery responses (that resulted in the April 2013 Order) or the
sanctions motion.

21
excuse and justification rather than Defendant's evidence of a willful failure to comply

with the April 2013 Order. Plaintiff's contention fails for at least two reasons.

First, Plaintiff's evidence was not before the trial court. The court denied

Plaintiff's ex parte application to allow her to file and serve an opposition to the sanctions

motion less than two days prior to the hearing, based on five weeks' notice of the motion

and no showing of good cause.

Second, given the standard of review, "if the trial court's conclusion was a

reasonable exercise of its discretion, we are not free to substitute our discretion for that of

the trial court." (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.)

Because " '[t]he scope of discretion always resides in the particular law being applied[,]' "

we consider "whether, given the established evidence," the trial court's ruling "falls

within the permissible range of options set by the legal criteria." (Department of Parks &

Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831 (Department of

Parks).)

Here, Defendant requested the monetary sanctions pursuant to sections 2031.300,

subdivision (c); 2031.320, subdivision (c); 2030.290, subdivision (c); 2023.030,

subdivisions (a) and (c); 2023.010, subdivisions (d), (g) and (i); and 177.5. In short,

section 2023.030, subdivision (a) allows for monetary sanctions against a party who

engages in the misuse of the discovery process; section 2023.010 contains a nonexclusive

list of misuses of the discovery process, and subdivisions (d), (g) and (i) include,

respectively, failing to respond or submit to an authorized method of discovery,

disobeying a court order, and failing to meet and confer if required under a specific

22
section that requires such conduct prior to filing a discovery motion; section 2031.300,

subdivision (c) mandates the imposition of monetary sanctions against a party who

unsuccessfully opposes a motion to compel a response to a demand for inspection of

documents; section 2031.320, subdivision (c) allows for monetary sanctions against a

party who fails to obey an order compelling the inspection of documents;

section 2030.290, subdivision (c) both mandates the imposition of monetary sanctions

against a party who unsuccessfully opposes a motion to compel a response to

interrogatories and allows a further monetary sanction against a party who fails to obey

an order compelling answers; and section 177.5 allows for monetary sanctions not to

exceed $1,500 payable to the court for a party's violation of a court order.

Although the trial court did not state under which provision it awarded monetary

sanctions, at a minimum the evidence of Plaintiff's failure to comply with the various

directives in the April 2013 Order is sufficient to support an award of monetary sanctions

under (1) section 2023.030, subdivision (a) (misuse of discovery process, which includes

disobeying a court order [§ 2023.010, subd. (g)]); (2) section 2031.320, subdivision (c)

(failure to obey an order compelling inspection of documents); and section 2030.290,

subdivision (c) (failure to obey an order compelling answers to interrogatories).23 The

fact that Plaintiff may have presented other evidence which if credited would have been a

23 By this statement, we do not imply either that the court was required to state the
statute under which the monetary sanctions were awarded or that the evidence was
insufficient to support an award of monetary sanctions under the other legal criteria relied
on by Defendant in the sanctions motion.

23
defense to the monetary sanctions is irrelevant to our analysis on appeal. As we

introduced ante, the issue is not whether there is evidence to support a different finding,

but whether there is evidence that, if believed, would support the finding actually

rendered. (Bowers, supra, 150 Cal.App.3d at pp. 872-873.)

Finally, although Plaintiff does not directly challenge the amount of the sanctions,

we are satisfied that Defendant presented substantial evidence in support of both: (1) the

award of $960 in attorney fees and costs associated with obtaining the April 2013 Order;

and (2) the award of $7,260 in attorney fees and costs associated with attempting to

obtain Plaintiff's compliance with the April 2013 Order and in preparing and arguing the

sanctions motion.

For these reasons, the court did not abuse its discretion in awarding monetary

sanctions.

C. Plaintiff Has Not Established an Abuse of Discretion Associated with the Filing of
the Peabody Order

At a hearing on June 28, 2013, the court granted Peabody's motion to be relieved

as Plaintiff's counsel. The court signed and filed the Peabody Order (using the mandatory

Judicial Council form) on July 30, 2013. Peabody served Plaintiff with a conformed

copy of the Peabody Order on August 5, 2013. During the time period of June 28 to

August 5, 2013, Peabody refused to participate in discovery, and Defendant's counsel

declined to speak with Plaintiff the one time she called counsel directly.24 At the hearing

24 We express no opinion on Peabody's refusal to participate in discovery. To the
extent Plaintiff faults Defendant's counsel for not communicating with her, we agree with
24
on the sanctions motion in October 2013, the court mentioned that its practice is to sign

proposed orders within two days of receiving them.

Based on these facts, Plaintiff contends that because Peabody included a proposed

order with his motion on May 20, 2013, the court abused its discretion in waiting until

July 30, 2013, to sign and file the Peabody Order. As we explained ante, an abuse of

discretion must be analyzed in the context of the applicable law and the evidence

presented (Department of Parks, supra, 233 Cal.App.3d at p. 831), and Plaintiff has the

burden of establishing the alleged abuse (Denham, supra, 2 Cal.3d at p. 566). Plaintiff

has not met her burden here.25

First, Plaintiff has not established the legal criteria to be applied in the timing of

the filing of written orders relieving counsel, and we are unaware of any such standard.

Moreover, Plaintiff's recitation of the evidence is not substantiated by the record

on appeal. Most significantly, the record does not support Plaintiff's premise that the

court had a proposed order in May. In fact, Peabody did not lodge a proposed order with

his motion. All Peabody did was attach as exhibit C to his declaration a copy of a

proposed order — without any mention in his declaration what any of the exhibits were

Defendant that rule 2-100 precluded counsel from communicating with Plaintiff until
after the court filed the Peabody Order.

25 While blaming Peabody, Defendant's counsel and the court for what she
characterizes as the delay in the filing of the Peabody Order, Plaintiff presents no reason
or explanation for not submitting a proposed order herself.

25
and without actually presenting a proposed order to the court.26 Indeed, the Peabody

Order (i.e., the actual order the court signed and filed) contains different information than

exhibit C to Peabody's declaration in six of the eight numbered paragraphs that require

information — including how to contact Plaintiff.

DISPOSITION

The judgment is affirmed. Defendant is awarded costs on appeal. (Cal. Rules of

Court, rule 8.278(a).)

IRION, J.

WE CONCUR:

MCCONNELL, P. J.

BENKE, J.

26 Exhibit A appears to be an unsigned copy of a substitution of attorneys form by
which Plaintiff would be representing herself in place of Peabody, and exhibit B appears
to be a copy of the register of actions in the superior court case.
26