Filed 10/28/19 Williams v. Hernandez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

SILVIA ALVAREZ WILLIAMS et al.,

Plaintiffs and Appellants,

v.

JAIME CAZAS HERNANDEZ et al.,

Defendants and Respondents.

E071599

(Super.Ct.No. CIVDS1309919)

OPINION

APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed.

Law Offices of Michael Poole and Michael Poole for Plaintiffs and Appellants.

No appearance for Defendants and Respondents.

I. INTRODUCTION

Plaintiffs and appellants, Silvia Alvarez Williams and Alma Alvarez, and their counsel of record, Michael Poole, appeal from a September 23, 2016, order of the superior court imposing monetary sanctions in the amount of $3,985 following a motion seeking terminating sanctions for failure to respond to discovery or appear for deposition. On appeal, Mr. Poole argues that insufficient evidence supports the imposition of sanctions against him. We conclude that Mr. Poole’s argument has been forfeited for failure to provide an adequate record for review and further conclude that the limited record provided does not establish an abuse of discretion warranting reversal.

The opening brief also includes arguments related to a purported June 13, 2016, discovery order, as well as offsets against the judgment in the underlying action. However, the notice of appeal identifies only the September 23, 2016, order and, as such, we decline to address these arguments as outside the scope of the appeal.

II. FACTS AND PROCEDURAL HISTORY

In 2013, plaintiffs filed a civil action against defendants and respondents, Jaime Cazas Hernandez and DIA-CJ Better Ways Investments, asserting contract and tort claims arising out of the breach of a purchase option provision in a real property lease.

On April 20, 2016, defendants filed multiple discovery motions due to plaintiffs’ failure to respond to written discovery and failure to appear for depositions, including motions to compel responses to form interrogatories, special interrogatories, and requests for production; a motion to deem the authenticity of documents admitted; and a motion to compel plaintiffs’ appearance for deposition. Plaintiffs did not oppose any of these motions.

On June 13, 2016, the trial court heard and granted the discovery motions, awarding a total of $2,365.20 in monetary sanctions against plaintiffs. The trial court’s minute order stated plaintiffs were to respond to written discovery and appear for deposition within 20 days, directed defendants to give notice, and directed defendants to prepare a formal order. That same day, plaintiffs filed a substitution of attorney, substituting Michael Poole as their new counsel of record.

On August 10, 2016, defendants filed another discovery motion, requesting terminating sanctions as the result of plaintiffs’ continued failure to respond to written discovery or appear for depositions. In the alternative, the motion sought an award of monetary sanctions.

In support of the motion, defendants submitted the declaration of Deian V. Kazachki. According to Mr. Kazachki, he sent written correspondence immediately following the trial court’s hearing on defendants’ prior discovery motions which proposed seven potential dates for plaintiffs’ depositions. Mr. Kazachki again sent written correspondence to Mr. Poole dated June 23, 2016, which requested confirmation of mutually agreeable deposition dates. In response, Mr. Poole indicated that plaintiffs would only make themselves available on July 5 and 6, 2016, for deposition. After Mr. Kazachki agreed to move forward with both plaintiffs’ depositions on July 5, 2016, Mr. Poole informed him for the first time that Silvia Williams resided in Northern California, that defendants would have to travel to Northern California to take her deposition, and that she would require at least two weeks’ notice to make herself available. As a result, the depositions did not move forward on July 5, 2016.

According to Mr. Kazachki, counsel for both parties eventually agreed to set the deposition of Alma Alvarez for July 20, 2016, while they continued to meet and confer regarding the location for the deposition of Silvia Williams. Defendants sent a notice of deposition per the agreed date. Two days before the deposition, Mr. Poole informed Mr. Kazachki that plaintiffs intended to go into court that morning to seek an ex parte order to file an amended pleading and set aside the court’s prior discovery orders. Mr. Poole picked the same date as Ms. Alvarez’s deposition to bring the ex parte request, requiring postponement of the deposition. When Ms. Alvarez appeared at her deposition later that day, she was accompanied by an individual named Glenn Ramirez. Mr. Poole proceeded to inform Mr. Kazachki for the first time that Ms. Alvarez would be testifying through a Spanish language interpreter and that Mr. Ramirez would act as her interpreter. However, after defendants discovered that Mr. Ramirez was not certified as a court interpreter and further discovered that Mr. Ramirez was a potential witness regarding the transactions which were the subject of the litigation, they elected not to proceed with the deposition at that time.

Plaintiffs filed an opposition, supported by the declaration of Mr. Poole. Mr. Poole’s declaration did not dispute any of the facts set forth in Mr. Kazachki’s declaration, stated that plaintiffs always represented the intent to appear for deposition, and expressed the belief that defendants’ counsel was responsible for canceling the July 5 and July 20, 2016, depositions. Plaintiffs’ opposition memorandum briefed only the issue of terminating sanctions.

On September 23, 2016, the trial court held a hearing on defendants’ motion for terminating sanctions. After entertaining oral argument on the matter, the trial court denied the request for terminating sanctions, granted the alternative request for monetary sanctions against plaintiffs and Mr. Poole in the amount of $3,985, and ordered counsel to meet and confer outside the presence of the court and return with agreed dates for depositions. The trial court subsequently had counsel confirm their agreement for the taking of plaintiffs’ depositions on the record and incorporated those provisions into its minute order.

On June 7, 2017, the trial court granted a motion by Mr. Kazachki to be relieved as counsel for defendants. Defendants did not obtain new counsel and, following the failure to oppose a motion for judgment on the pleadings and subsequent dismissal for failure to appear, plaintiffs obtained a default judgment. On November 5, 2018, plaintiffs filed their notice of appeal, listing only the September 23, 2016, order, which is the subject of the appeal. On December 31, 2018, plaintiffs filed a notice designating the record on appeal and electing to proceed without a reporter’s transcript and with only partial excerpts from the clerk’s transcript.

III. DISCUSSION

A. Mr. Poole Has Failed to Provide an Adequate Record for Review of the September 23, 2016, Order and the Record Provided Does Not Establish an Abuse of Discretion

The only aspect of the September 23, 2016, order challenged on appeal is the imposition of monetary sanctions jointly against plaintiffs and Mr. Poole. Specifically, Mr. Poole argues that insufficient evidence supports the trial court’s imposition of sanctions against him. We deem the argument forfeited for failure to provide an adequate record for review and further conclude that the record before us does not establish an abuse of discretion by the trial court.

1. Plaintiffs Have Failed to Provide an Adequate Record for Review

“We review an order imposing discovery sanctions under the abuse of discretion standard.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)

When an order is reviewed for abuse of discretion, a record of oral proceedings is normally necessary to facilitate adequate review. “‘[I]t is appellant’s burden to provide a reporter’s transcript if “an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court . . .” [citation] . . . .’ A reporter’s transcript may not be necessary if the appeal involves legal issues requiring de novo review. [Citation.] In many cases involving the substantial evidence or abuse of discretion standard of review, however, a reporter’s transcript or an agreed or settled statement of the proceedings will be indispensable.” (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; see also Estate of Fain (1999) 75 Cal.App.4th 973, 987 [“[W]here the appellant fails to produce a complete record of oral trial proceedings, a challenge based on the claim of evidence insufficiency will not be heard.”]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385 [“By affirmatively requesting that the reporter’s transcript not be designated, [appellant] prevents us from reviewing the evidence and evaluating her arguments.”].)

In the absence of an adequate record, an “order of the trial court is presumed correct and prejudicial error must be affirmatively shown. [Citation.] . . . ‘“A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”’ [Citation.] ‘ . . . [Appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].’” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)

Here, Mr. Poole challenges the trial court’s award of monetary sanctions against him. However, he specifically elected to proceed without a reporter’s transcript of oral proceedings. Moreover, he chose to designate only a partial clerk’s transcript, which excluded the moving parties’ memorandum of points and authorities, excluded one of the two evidentiary declarations filed in support of the motion, excluded the moving parties’ reply brief, and excluded an evidentiary declaration submitted with the reply brief. Essentially, Mr. Poole has designated a record which omits all of the moving parties’ legal arguments (as well as portions of the evidence) submitted for the trial court’s consideration. Such a record is patently insufficient where Mr. Poole seeks reversal of an order based upon an abuse of discretion for lack of sufficient evidence. Accordingly, we deem the challenge forfeited and affirm the order awarding monetary sanctions against Mr. Poole on this ground.

2. The Record Before Us Does Not Establish an Abuse of Discretion

Moreover, even if we were to consider the partial record before us, we would find no abuse of discretion in the trial court’s sanction award against Mr. Poole.

“Misuse of the discovery process may result in the imposition of a variety of sanctions. . . . Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute . . . .” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214; Code Civ. Proc., § 2023.010.) Sanctions are appropriate where a party or attorney acts in a manner intended to obstruct basic discovery. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1560-1561 [affirming award of sanctions as discovery abuse under Code Civ. Proc., §§ 2023.010 & 2023.030 where counsel “coached” witness during deposition].)

“‘The abuse of discretion standard is not a unified standard . . . . The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’” (Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 128.) “The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.” (New Albertsons, Inc. v. Superior Court, supra, 168 Cal.App.4th at p. 1422.) As such, “‘[s]anction orders are “subject to reversal only for arbitrary, capricious or whimsical action.”’” (Tucker v. Pacific Bell Mobile Services, supra, 186 Cal.App.4th at p. 1560.)

Here, the limited record before us establishes ample grounds for the trial court to conclude that Mr. Poole personally participated in the abuse of the discovery process warranting sanctions. The declaration of Mr. Kazachki submitted in support of defendants’ motion noted that Mr. Poole neglected to inform defense counsel that one of the plaintiffs intended to assert her right to have her deposition taken in Northern California, despite actively negotiating deposition dates; that Mr. Poole continued to propose July 5, 2016, and July 6, 2016, as potential deposition dates as of June 27, 2016, only to later inform defense counsel that at least one of the plaintiffs would need a minimum of two weeks’ notice to make herself available; that Mr. Poole agreed to a July 20, 2016, deposition date only to thereafter seek to bring an ex parte application on that same day; that Mr. Poole neglected to inform defense counsel of Ms. Alvarez’s need for an interpreter until the start of her deposition; and advocated for using an uncertified individual who was a potential witness to the action as an interpreter as a means to claim plaintiffs were still willing to move forward with the deposition on that date. These are all facts from which the trial court could infer a deliberate attempt to evade or obstruct defendants’ ability to take plaintiffs’ depositions.

While there may have been equally innocent reasons for Mr. Poole’s actions, Mr. Poole’s declaration did not attempt to explain his actions or provide any reason for them, let alone a reasonable one. Further, Mr. Poole’s opposition brief did not present any arguments regarding the request for monetary sanctions, addressing only the issue of terminating sanctions. It was the exclusive function of the trial court to weigh the evidence before it and resolve any conflicts. Where the evidence before the trial court gives rise to reasonable inferences in support of a finding that Mr. Poole personally engaged in discovery abuse, we find no abuse of discretion in the trial court’s award of monetary sanctions against Mr. Poole.

B. Mr. Poole’s Remaining Arguments are Beyond the Scope of This Appeal

A sanction award of $5,000 or less is a separately appealable order subject to review after entry of final judgment in the main action. (Code Civ. Proc., § 904.1, subd. (b).) “‘[W]here several judgments and/or orders occurring close in time are separately appealable . . . , each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.’” (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) “While a notice of appeal must be liberally construed, it is the notice of appeal which defines the scope of the appeal by identifying the particular judgment or order being appealed.” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.)

Plaintiffs’ notice of appeal identifies only the trial court’s order of September 23, 2016. Thus, we decline to address Mr. Poole’s challenge to the enforceability of a purported discovery order of June 13, 2016, and we further decline to address any arguments regarding amendment or modification of the judgment. Since the June 13, 2016, order and the judgment are not listed in the notice of appeal, these issues are outside the scope of this appeal.

IV. DISPOSITION

The trial court’s order of September 23, 2016, imposing monetary sanctions against plaintiffs is affirmed. Each party to bear their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.