Filed 1/21/20 Alfadly v. Alfadly CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

GREGORY ALFADLY,

Plaintiff and Appellant,

v.

WALEED S. ALFADLY,

Defendant and Respondent. B290198

(Los Angeles County

Super. Ct. No. D602696)

APPEAL from an order of the Superior Court of Los Angeles County. Ana Maria Luna, Judge. Affirmed.

The Tello Law Corporation and Ariel A. Tello, for Plaintiff and Appellant.

Macksoud & Macksoud, Alexander E. Macksoud and Alexander E. Macksoud II. for Defendant and Respondent.

_____________________________

Marjorie Alfadly appeals from the dismissal of her request for child support. The dismissal was issued as a terminating sanction for discovery abuse. We affirm.

PROCEDURAL BACKGROUND

Waleed and Marjorie divorced in 1964. They have one son together, Gregory, born September 3, 1961. Beginning in 2000, Gregory and Marjorie pursued Waleed for child support pursuant to Family Code section 3910, which requires parents to maintain, “to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.” (Fam. Code, § 3910, subd. (a).) In their requests for support, Gregory and Marjorie alleged Gregory was incapacitated from earning a living due to his agoraphobia and other psychiatric disorders and that he was without sufficient means. They also alleged Waleed owned a medical practice as well as property worth millions of dollars and was more than able to support Gregory.

Gregory filed two petitions seeking support from Waleed, both of which he voluntarily dismissed. (Alfadly v. Alfadly (Super. Ct. Orange County, 2000, No. 00P000692); Alfadly v. Alfadly (Super. Ct. L.A. County, 2004, No. YS013662).)

In 2014, Marjorie filed a request for modification of child support in Los Angeles County Superior Court in Case No. D602696. In addition to support payments, she requested payment of Gregory’s medical expenses, the establishment of a trust for his benefit, a life insurance plan in his name, psychiatric home care for him, and payment of her attorney fees and forensic accountant fees. The hearing on the request was continued several times. Waleed was ordered to pay Marjorie’s attorney fees in the amount of $15,000. In June 2015, the trial court bifurcated the proceedings, setting a September 2, 2015 hearing to address attorney fees and a September 25, 2015 hearing to address the child support request.

Prior to the scheduled hearings, Marjorie filed an ex parte application for a temporary emergency court order seeking support for Gregory. It was denied. Neither Marjorie nor her counsel appeared for the first scheduled hearing to address her attorney fees request. The attorney fees issue was placed off calendar, but the trial court ordered the September 25 hearing date to remain on calendar.

On September 8, 2015, Gregory submitted a declaration advising the trial court that Marjorie had fallen and broken her hip on July 5, 2015. The declaration was made in support of another ex parte application for a temporary emergency court order seeking attorney fees and costs in preparation for the September 25 hearing and temporary support for Gregory. This order appears to have been denied as well. On September 25, 2015, Marjorie requested another continuance. The request was denied and the matter was taken off calendar.

Although the matter appeared to be stayed, Marjorie filed another request for child support and attorney fees on November 20, 2015. The matter was transferred to Long Beach and the trial court ordered additional attorney fees in the amount of $7,500 to be paid by Waleed to Marjorie’s counsel. Although the hearing on the November 20 request for child support and attorney fees was originally set for January 27, 2016, it was continued numerous times through 2016 and 2017. The trial court ultimately stayed the hearing in 2018 to first address a dispute over Marjorie’s and Gregory’s depositions.

Waleed issued notices of deposition for Marjorie and Gregory to be held on September 21 and 22, 2017, at his counsel’s office in Los Angeles. Neither appeared for the deposition. Waleed sought to reschedule the depositions, asking counsel to provide alternate dates in October for the deposition. Marjorie’s counsel requested discovery be conducted in writing because her health prevented her from leaving her home without significant help. Marjorie’s counsel asserted the parties had agreed to hold the depositions at Marjorie’s and Waleed’s homes in consideration of their poor health and advanced age. Waleed refused to limit discovery to written questions and moved to compel Marjorie’s and Gregory’s depositions, which was granted. The court ordered Marjorie to appear on March 1, 2018, at the Long Beach courthouse for her deposition. Gregory was ordered to appear a week later. Marjorie failed to appear.

On March 29, 2018, Waleed sought terminating sanctions against Marjorie for her failure to appear at the court-ordered deposition. In a declaration opposing sanctions, Marjorie explained she was ready to appear for her deposition that morning, but experienced problems breathing on the way to the courthouse. She attempted to use her rescue inhaler twice, but could not breathe deeply enough for the mist to have an effect. She asked her counsel to take her home, where she called her doctor and was given a prescription for prednisone. She went to urgent care for her condition two days later.

The trial court granted the motion for terminating sanctions, noting “it’s been like pulling teeth to get her to do anything” despite the fact that she initiated these proceedings. It found it would have been a sign of good faith for Marjorie to produce the documents requested in connection with the deposition notice, but she failed to do so. When her counsel explained that she was in no position to have her deposition taken due to her breathing problems, the trial court observed that she was not ill when her deposition was initially noticed to be taken and that the breathing problems were only “a factor” that prevented her from getting to court.

The court denied the request for support “with prejudice.” It further ordered sanctions in the amount of $2,000 to be paid to Waleed by Marjorie. Marjorie timely appealed.

DISCUSSION

Marjorie contends the trial court abused its discretion to issue terminating sanctions rather than lesser sanctions for a one-time failure to appear for her deposition. We disagree.

“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process,’ ” including terminating sanctions. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991, quoting Code Civ. Proc., § 2023.030.) Misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subds. (d) & (g).)

“ ‘The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action.’ ” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) The trial court may order a terminating sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; 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, 1246.) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id. at pp. 1244–1246 [discussing cases]; Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1616, fn. omitted (Collisson) [no abuse of discretion where trial court struck answer for party’s failure to obey order to produce discovery because “ ‘[o]btaining discovery from defendant[ ] in this case has been like pulling teeth.’ ”].)

Although Marjorie characterizes her failure to appear for the deposition as “a one-time occurrence,” the record demonstrates otherwise. She initially ignored Waleed’s notice of deposition and failed to appear. Even if we credit her counsel’s statement that the parties agreed to have the depositions taken at their homes, Marjorie should have, but did not, object to the deposition notice, move to quash the notice, or move for a protective order. (Code Civ. Proc., §§ 2025.410, subds. (a) & (c), 2025.420.) She was not allowed to simply ignore the notice. When Waleed’s counsel attempted to meet and confer with her to reschedule the deposition, her only response was that discovery be limited to written questions or interrogatories. She failed to appear for her deposition a second time at the Long Beach courthouse despite the court order to do so. She also made no good faith effort to comply with the order by producing the documents requested in the deposition notice.

Further, the trial court disbelieved the excuse that her breathing problems prevented her from attending her deposition when it was initially noticed and then when the court ordered it. It impliedly found Marjorie’s conduct to be willful when it indicated her illness was only “a factor” that prevented her from appearing. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [“We defer to the court’s credibility decisions and draw all reasonable inferences in support of the court’s ruling.”].) The trial court considered the totality of the circumstances to find that “it’s been like pulling teeth to get her to do anything” even though she initiated the proceedings.

Indeed, Marjorie initiated these proceedings against Waleed 50 years after their divorce was made final. She failed to advance her case in any significant way after four years of litigation, much to Waleed’s detriment. During this time, for example, Waleed was ordered to pay over $20,000 in Marjorie’s attorney fees as well as his own. Given these facts, the trial court did not abuse its discretion to issue terminating sanctions.

We reject Marjorie’s argument that the trial court was required to make an express finding that her failure to obey the discovery order was willful. Code of Civil Procedure, sections 2023.010, subdivision (g), and 2023.030, subdivision (d), specify that the failure to obey a court order is all that need be shown for terminating sanctions to be issued. (See Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884; Weil & Brown et al., Cal. Prac. Guide: Civ. Procedure Before Trial (The Rutter Group 2019) §§ 8:2145 – 8:2147, p. 8M-15.) Neither statute requires willful disobedience, much less an express finding of such.

Marjorie’s reliance on Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 (Deyo) is misplaced. First, Deyo addressed Code of Civil Procedure former section 2034, subdivision (d), in effect in 1978, not the current statutes. Second, Deyo misinterpreted Code of Civil Procedure former section 2034, subdivision (d), to require an express finding of willfulness, when it had no such requirement.

We also reject Marjorie’s argument that the trial court abused its discretion not to impose a lesser sanction. “ ‘[T]he question before this court 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. [Citation.]’ ” (Collisson, supra, 21 Cal.App.4th at p. 1620.) As discussed above, the trial court did not abuse its discretion by imposing terminating sanctions, given these facts. “ ‘[I]mposition of a lesser sanction would have permitted [Marjorie] to benefit from [her] stalling tactics. [Citation.]’ ” (Ibid.)

Finally, we find no merit to the argument that the trial court’s denial of Marjorie’s request for support “with prejudice” forever bars any other requests for support by Gregory under Family Code section 3910. Waleed concedes, and we agree, the trial court order does not bar a request for child support based on new or different facts. (See County of Shasta v. Caruthers (1995) 31 Cal.App.4th 1838, 1849 [“a minor’s right to support and maintenance by its father may not be limited or contracted away by the parents.”]; In re Marriage of Lambe & Meehan (1995) 37 Cal.App.4th 388, 390–391.)

Given our disposition, the request that the trial judge be disqualified from further proceedings is moot. There will be no further proceedings in the trial court as they relate to this appeal.

DISPOSITION

The challenged order dismissing the request for modification of child support is affirmed. Each party to bear its own costs on appeal.

BIGELOW, P. J.

WE CONCUR:

GRIMES, J.

STRATTON, J.