Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. 1112533, Santa Barbara County.
Frank Cuykendall, pro. per. for Defendant and Appellant.
Price, Postel & Parma, Penny Clemmons, for Plaintiff and Respondent.
COFFEE, J.
In this dissolution proceeding, the trial court struck the responsive pleading of appellant Frank Cuykendall and entered a default judgment in favor of respondent Robin Breda. Frank contends that the court abused its discretion by (1) imposing a terminating sanction, (2) awarding spousal support in the amount of $630 until Robin remarries or dies or the court otherwise orders, (3) determining the value of Frank's law practice to be $300,000 and awarding Robin an equalizing payment of $150,000, and (4) awarding attorneys' fees in the amount of $20,000. We affirm.
We refer to the parties by first name to ease the reader's task, and not from disrespect.
FACTS
Robin and Frank were married on April 21, 2001. There is one minor child of the marriage, born in the same year. Robin and Frank separated on March 25, 2003, for a marriage of one year and eleven months. Robin is a licensed aesthetician. Frank is a civil litigation attorney.
Robin filed a petition for dissolution, seeking, among other things, spousal support and division of community property "[t]o be determined." Robin's income and expense declaration listed her gross monthly income as $4,318. Frank's responsive income and expense declaration listed his gross monthly income as $7,708.
The court granted a motion for temporary support in February 2005, ordering Frank to pay $378 in child support, $300 in child care expenses, and $630 in spousal support monthly until further order of the court. The court also ordered Frank to pay Robin $5,000 in attorney's fees and costs. Frank discharged his attorney and began to represent himself. As of October 31, 2005, Frank had paid no spousal support, no attorney's fees or costs, had not fully met his childcare obligations, and had paid only three months of child support.
Robin propounded form interrogatories on March 10, 2005, seeking financial information from Frank. By June 16, 2005, Frank had not responded to the interrogatories.
Robin served a demand for production upon Frank on April 12, 2005, seeking financial information. She requested: (1) bank statements; (2) check registers; (3) time records and billing statements; (4) retainer agreements; (5) settlement agreements; (6) itemization of active cases, all bills, statements receipts; and (7) invoices reflecting business expenses for 2003 through 2005. As to items (3) through (6) she provided that "last names and other identifying information may be redacted." Frank objected to categories (4) through (6) based on attorney-client privilege. He agreed to produce (1) bank statements, (2) check registers, and (7) invoices of business expenses "in his possession, custody, or control," but stated "it must be determined who is to pay the bank fee to obtain archived records that are not available free online."
By June 16, 2005, Frank had produced no documents. Frank did not seek a protective order to protect against the financial burden of production or to protect the attorney client privilege.
Robin noticed Frank's deposition. Frank did not appear for deposition. On the day before the deposition, he sent a facsimile to Robin's counsel stating, without explanation, that he would not appear.
The letter is not included in the record and we accept counsel's description as accurate.
Robin's counsel sent a meet and confer letter to Frank on May 27, 2005. Frank did not respond. Upon Robin's application, the court continued trial and set a conference to review status of discovery. Robin filed a motion to compel Frank to appear for deposition and to respond her written discovery. She requested $5,000 in sanctions. Frank had not served any responses to form interrogatories or produced any documents, and the deposition had not been rescheduled.
Frank opposed the motion. He declared that "[a]ll responses and documents have been provided," and that he had "constantly asked [Robin's] attorney to schedule both [Frank's] and [Robin's] deposition on the same day to save time and money."
The court granted Robin's motion to compel, including her request for monetary sanctions. The order did not expressly address monetary sanctions, but stated that "[w]ith the exceptions noted hereinafter, [Robin's] motion shall be and is hereby granted." We therefore assume that the requested monetary sanctions were imposed. The court ordered that Frank answer the form interrogatories and supply the documents demanded, redacting client information as necessary, and that he appear for deposition after responding to the written discovery.
Frank eventually served responses to form interrogatories, but did not itemize his separate property contentions, submit a schedule of assets and liabilities or identify documents to support his declared income, all of which were called for by the form interrogatories. On September 7, 2005, the court found the matter was not ready for trial setting and set a further conference for October 12, 2005. In her September 2005 case management statement, Robin stated that she intended to move for terminating sanctions if Frank did not comply with the discovery orders before the October 12, 2005 case management conference.
On October 12, 2005, Frank produced some documents, but his production was not complete and did not cover the period requested. At the October 12, 2005 case management conference, the court set trial for January 11, 2006, and sanctioned Frank $100 for failure to file a case management statement.
Robin filed a motion for monetary, issue, evidentiary and terminating sanctions, based on Frank's failure to comply with the discovery order and failure to comply with the order for temporary child support, spousal support, attorney's fees and costs. In response, Frank produced some tax returns. He declared that he did not have the ability to pay the court ordered support and attorney's fees, and that he was not interested in defending the action because he was insolvent. The court granted the motion and struck Frank's responsive pleading on the grounds that Frank had willfully failed to comply with the court orders after repeated warnings and adequate opportunity.
The court entered Frank's default. Frank did not respond to the request to enter default judgment or the attached property declaration, after being served. Frank did not request relief from default or appear at the default prove-up.
The court entered judgment in the form requested by Robin, awarding child support in the amount of $378 per month and spousal support in the amount of $630 "until [Robin] dies, remarries or until further Order of the Court." The court ordered Frank to pay arrearages of spousal support in the amount of $10,542 and attorney's fees in the amount of $20,000, which included $5,000 imposed previously. The court valued Frank's law practice at $300,000 and ordered Frank to pay to Robin an equalizing payment of $150,000. Frank did not move to set aside the default judgment.
Terminating Sanction
Frank contends that the court abused its discretion by imposing a terminating sanction, and that lesser sanctions would have protected Robin's interests. We disagree.
We review an order imposing sanctions for abuse of discretion. "[W]e presume the court's order is correct and indulge all presumptions and intendments in its favor on matters as to which the record is silent." (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) A court may impose monetary, issue, evidentiary, or terminating sanctions for misuse of the discovery process. (Code Civ. Proc., § 2023.030 subd. (d).) Misuse of discovery includes failing to respond or to submit to an authorized method of discovery, disobeying a court order to provide discovery, and failing to confer with an opposing attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. (§ 2023.010, subds. (d), (g) & (i).) In tailoring a sanction to fit the particular abuse, the trial court considers factors including the willfulness of the conduct, 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.) "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 the discovery but to impose punishment." (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304.) Robin's motion identified only section 2023.030 as authority for the requested sanctions, and we do not therefore consider the alternative ground of Frank's failure to pay interim support and fees.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Terminating sanctions are a drastic measure ordinarily imposed with caution, but there is no question that a court may impose them against a litigant who persists in refusal to comply with his discovery obligations. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 797, superceded by statute on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) Substantial evidence in the record demonstrates that Frank continually failed to cooperate in the discovery process and willfully disobeyed a court order to provide for discovery. Robin was prejudiced by Frank's refusal to meet his discovery obligations. Without his financial information, she was unable to secure an evaluation of Frank's law practice or his earning capacity. Lesser sanctions may have rewarded Frank for his delay. Through his piecemeal discovery responses and refusal to cooperate, he delayed trial and judgment for almost a year. The initial trial date of June 29, 2005, was vacated because discovery was incomplete, and on September 7, 2005, the court found the matter was still not ready for trial setting because of the discovery status. By the time the default judgment was entered on May 17, 2006, Frank had still not complied with the temporary support orders or paid the interim fee award. Frank had ample notice of Robin's intention to seek terminating sanctions, and he received proper notice of the motion for sanctions. Frank made a conscious decision not to defend the action. He declared in opposition to the motion for terminating sanctions that "[t]here is no need for me to aggressively defend this action . . . as there is no property and so little money to protect. I have never had money and never owned property. I only have significant student loan debt. I have nothing to protect." The court was within its discretion to determine that lesser sanctions would have had no effect. There is no abuse of discretion.
Even if the court did not impose lesser sanctions first, it did not abuse its discretion. A court may impose terminating sanctions for willful violations of discovery even where it has not first imposed lesser sanctions. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds Garcia v. McCutchen (1997) 16 Cal.4th 469.) In Laguna Auto Body, terminating sanctions were upheld where the plaintiffs failed to comply with a discovery order, repeatedly failed to meet discovery deadlines, and filed no opposition to the motion to dismiss. The court had not previously imposed lesser sanctions. In Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, terminating sanctions were also upheld where the defendants failed to meet their discovery obligations, and failed to comply with an order compelling compliance and imposing monetary sanctions. Terminating sanctions were within the court's discretion here.
The cases relied upon by appellant are inapposite. In Thomas v. Luong (1986) 187 Cal.App.3d 76, the court abused its discretion by imposing terminating sanctions because the offending party had responded to previous discovery, but could not be located when further discovery was propounded, and their attorney offered to stipulate to the issues that were covered by the discovery requests. In Wilson v. Jefferson (1985) 163 Cal.App.3d 952, terminating sanctions were excessive because the pending discovery related only to one affirmative defense and did not address many issues that were a part of the default judgment. In McArthur v. Bockman (1989) 208 Cal.App.3d 1076, dismissal of defendants' answer and cross-complaint was an excessive sanction for failure to appear at deposition, because the deposition was limited to the issue of financial condition pursuant to section 3295. In our case, the pending discovery covered all the disputed financial issues that were included in the default judgment, and there was no offer to stipulate to any of Robin's contentions. The court was within its discretion to impose terminating sanctions.
Duration of Support, Valuation of Law Practice, and Fee Award
Frank contends that the relief awarded was an abuse of discretion. Specifically, he contends that the award of "permanent life-time" spousal support was not based on the factors required by Family Code section 4320 and was excessive because the marriage was of short duration, that his law practice was actually worth less than $300,000, that the equalizing payment of $150,000 was therefore excessive and that the award of $20,000 in attorneys' fees was excessive. We reject the contentions.
The spousal support, the equalizing payment and the fee award were determined by default upon Robin's declaration, as authorized by Family Code section 2336. Appeal from the default judgment "presents for review only the questions of jurisdiction and the sufficiency of the pleadings." (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767.) Sufficiency of the evidence is not reviewable. (Ibid.) The one exception to this rule allows review of the sufficiency of evidence to support an excessive or speculative damage award. (Uva v. Evans (1978) 83 Cal.App.3d 356.) That review is "severely circumscribed. An appellate court may interfere with [the] determination only where the sum awarded is so disproportionate to the evidence as to suggest that the verdict was the result of passion, prejudice or corruption [citations] or where the award is so out of proportion to the evidence that it shocks the conscience of the appellate court." (Id. at pp. 363-364.) The award in this case does not shock our conscience and does not appear to be the result of passion, prejudice or corruption. Frank does not and cannot demonstrate lack of jurisdiction or insufficiency of pleadings on this record, and he lost the opportunity to contest the sufficiency of evidence when he failed to participate in discovery, to appear at the default prove-up hearing or to move to set aside the default.
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: GILBERT, P.J., YEGAN, J., James W. Brown, Judge.