Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 148984. Brian L. McCabe, Judge.
Doyle Warkentin, in pro. per., for Plaintiff and Appellant.
Severson & Werson and Joshua E. Whitehair for Defendants and] Respondents.
OPINION
Kane, J.
A motion for terminating sanctions made by defendants, Countrywide Home Loans, Inc. and Goldman Sachs & Company (defendants), was granted by the trial court due to the willful failure and refusal by plaintiff, Doyle Warkentin, to comply with the trial court’s discovery orders. A judgment of dismissal resulted and plaintiff appealed. We find no abuse of discretion. The order and judgment of the trial court are affirmed.
Plaintiff has filed two other appeals in this same case. In addition to this appeal, there are appeals pending in this court in case Nos. F059782 and F059900. We will address each appeal by separate opinion.
FACTS AND PROCEDURAL HISTORY
Plaintiff commenced this action in 2005 by filing a complaint against defendants and others, alleging violations of federal statutes regarding the servicing and collection of plaintiff’s real estate home loan. In addition to damages, plaintiff sought to enjoin defendants from proceeding with nonjudicial foreclosure. After several rounds of demurrers, the trial court eventually sustained defendants’ demurrer to the entire third amended complaint without leave to amend and entered a judgment of dismissal. Plaintiff appealed from that judgment. On appeal, we concluded that the trial court correctly sustained the demurrer to the entire third amended complaint, but we also held that leave to amend should have been permitted with respect to one of the causes of action—i.e., for violation of section 2605(e) of the Real Estate Settlement Procedures Act (12 U.S.C. § 2601 et seq.; RESPA). (See Warkentin v. Countrywide Home Loans (Dec. 10, 2008, F052660, F053148) [nonpub. opn.] at pp. *2-3, 10-16.)
We grant defendants’ request that we take judicial notice of our prior opinion and procedural matters recited therein.
The case was remanded to the trial court, where plaintiff filed a fourth amended complaint reasserting some of the same claims that were removed in the prior demurrer. A demurrer to plaintiff’s fourth amended complaint was filed by defendants. Judge Carol Ash sustained the demurrer, without leave to amend, except for the cause of action under RESPA section 2605(e) against defendants, concerning which the demurrer was overruled. Plaintiff was directed by the trial court’s order to file a fifth amended complaint in “full conformity” with the order, including the removal of “all claims on which Defendants’ demurrers were sustained, including any immaterial allegations upon which those dismissed claims were based, and re-allege only a cause of action for violation of RESPA’s section 2605 (e) as against defendants.…”
Also, plaintiff had initiated a second action against the same defendants, Warkentin v. Countrywide Home Loans (Super. Ct. Merced County, 2008, No. 150911), alleging the same wrongs, based on the same underlying facts. The two actions were ordered consolidated for all purposes under Merced County Superior Court case No. 148984.
Despite the order’s clear directives, plaintiff filed a fifth amended complaint that went beyond the scope of the trial court’s grant of leave to amend, reasserted many of the dismissed claims and realleged matters that he was instructed to remove. Defendants filed a motion to strike the improper allegations. On December 22, 2009, Judge Brian McCabe granted defendants’ motion to strike the improper allegations and also granted defendants’ accompanying request for monetary sanctions against plaintiff.
Plaintiff filed a sixth amended complaint that did not conform to the trial court’s order granting the motion to strike and the limitations therein on the scope of leave to amend. On a subsequent motion to strike, the trial court struck the improperly pleaded claims and allegations and entered a “Revised” sixth amended complaint.
We turn now to the relevant discovery proceedings. On February 10, 2010, the trial court granted defendants’ motion to compel plaintiff to serve further responses to requests for production of documents (set one), requests for admission (set one), special interrogatories (set one), and form interrogatories (set one), and to attend a deposition to be noticed by defendants. The trial court found plaintiff’s objections were inapplicable or without merit, including that discovery was “premature,” that a trial date had not yet been set, or that the requests were not relevant. Verified written responses were to be served by plaintiff on defendants by March 30, 2010, and plaintiff was “to avail himself for deposition to be scheduled and noticed by Defendants.” The trial court additionally found that plaintiff’s failure to adequately respond was the product of “gamesmanship” and it awarded monetary sanctions against plaintiff in the sum of $2,331.25.
This summary is based on the factual recitals in the trial court’s order granting terminating sanctions. The record on appeal does not include key documents such as defendants’ motion for terminating sanctions. Even considering the matters submitted in connection with plaintiff’s other appeals (plaintiff’s brief refers to F059900), the record before us is still woefully incomplete. The most glaring omissions from the record are defendants’ motion for terminating sanctions and supporting papers, plaintiff’s opposition thereto, if any, and plaintiff’s further responses pursuant to the trial court’s February 10, 2010, discovery order.
Plaintiff failed to comply with the trial court’s order. On April 22, 2010, defendants filed their motion for terminating sanctions. The basis for defendants’ motion was plaintiff’s failure and/or refusal to (i) appear for deposition and (ii) submit verified further responses to the written discovery, as the court previously ordered. Additionally, plaintiff had failed to pay previously ordered monetary sanctions. On June 2, 2010, the trial court granted the motion for terminating sanctions, after carefully detailing plaintiff’s history of discovery abuses and refusals to comply with legitimate discovery requests. Additional monetary sanctions were also ordered. A judgment of dismissal in defendants’ favor was thereafter entered, and plaintiff filed the instant appeal.
Since plaintiff did not provide defendants’ moving papers as a part of the record on appeal, we rely on the trial court’s procedural summary set forth in the order granting terminating sanctions.
DISCUSSION
I. Plaintiff Failed to Demonstrate any Error or Abuse of Discretion
“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As a consequence, an appellant has the burden of demonstrating reversible error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) When points are perfunctorily raised, without adequate analysis and authority, and without citation to an adequate record, we pass them over and treat them as abandoned. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
“‘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.’” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) The inadequate record and lack of cogent argument in this case is, in effect, a default by plaintiff requiring that we affirm the judgment.
Here, plaintiff has failed to present any cogent legal argument, or citation to any legal authority or precedent, in support of his claim that the trial court should not have granted the motion for terminating sanctions. Nor has he made specific reference to an adequate record, or cited a relevant portion thereof, to support any purported argument or assertion. More specifically, he has not supplied or referenced matters critical to our review, such as his discovery responses, if any, in response to the trial court’s order, or the moving and opposing papers in connection with the motion for terminating sanctions. Regarding the propriety of terminating sanctions, plaintiff has failed to address to any meaningful extent the specific discovery abuses detailed in the trial court’s order granting terminating sanctions. Although he offers bare conclusions to the effect that he was trying to comply, or reasonably believed he had complied, with the discovery orders, nothing in the record supports such claims. Plaintiff has failed to meet his burden as appellant; therefore, we affirm the judgment below.
II. Terminating Sanctions Were Proper
In any event, even relying on the sketchy record before us, it is clear that the trial court’s order granting terminating sanctions was not an abuse of discretion in this case. A trial court’s choice of discovery sanctions is subject to appellate review for abuse of discretion. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) “[T]he trial court has wide discretion to order discovery and broad powers to enforce those orders. Although such powers are not unlimited, they are presumed correct and will not be disturbed in the absence of an abuse of discretion.” (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175.) “It is appellant’s burden to affirmatively demonstrate error and, where the evidence is in conflict, this court will not disturb the trial court’s findings. [Citations.]” (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 [affirming terminating sanctions].) “‘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 question is not whether the trial court should have imposed a lesser sanction, but “whether the trial court abused its discretion by imposing the sanction it chose.” (Id. at p. 37.)
Under the applicable discovery statutes, if a party fails to obey an order compelling document production or fails to obey an order compelling further responses to interrogatories, “the court may make those orders that are just, including the imposition of … a terminating sanction Chapter 7 (commencing with [Code Civ. Proc.] Section 2023.010).” (Code Civ. Proc., § 2031.320, subd. (c) [document production]; § 2030.300, subd. (e) [interrogatories; identical wording regarding sanctions].) Likewise, the same statutory authority to impose a terminating sanction is applicable if a party fails to obey an order compelling attendance at a deposition. (§ 2025.450, subd. (d).) A terminating sanction may include, as was the case here, an order dismissing the action. (§ 2023.030, subd. (d)(3).)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
A trial court may only impose terminating sanctions if 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; Laguna Auto Body v. Farmers Ins. Exchange, supra, 231 Cal.App.3d at p. 488.) Terminating sanctions have been upheld where there was substantial evidence that a party willfully obstructed discovery and failed to comply with the trial court’s orders. (Laguna Auto Body v. Farmers Ins. Exchange, supra, at pp. 489-491 [repeated delays and plainly inadequate responses, despite court orders, showed willful failure to comply]; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293). Such sanctions are plainly warranted where there was a continuing pattern of discovery abuses and of failures to respond adequately to discovery in compliance with court orders. (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc., supra, at p. 1106 [dismissal sanction affirmed where a party “persisted in its pattern of failure or refusal to give meaningful responses to discovery,” noting the trial court “was not required to allow [party] to continue its stalling tactics indefinitely”]; Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069 [repeated failures to respond to discovery and to comply with court’s discovery orders provided ample grounds for terminating sanctions].)
Willfulness need not amount to a wrongful intention to disobey. Rather, a “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787-788.) A failure may be deemed willful if the party understood its obligation, had the ability to comply and failed to comply. (Morgan v. Southern Cal. Rapid Transit Dist. (1987) 192 Cal.App.3d 976, 983-984, disapproved on other grounds in Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428.) A party may disagree with a court order, but “he disregards it at his peril.” (Morgan v. Southern Cal. Rapid Transit Dist., supra, at p. 983.)
In this case, the trial court’s findings included that plaintiff failed to comply with the February 10, 2010, order that he serve verified further responses to defendants’ written discovery requests, including form interrogatories, requests for production of documents, special interrogatories and requests for admission. Following the February 10, 2010, discovery order that clearly required such responses, plaintiff: (a) “Provided no responses to the form interrogatories, objecting on the basis of relevancy, privilege and redundancy”; (b) “Produced no documentation in response to the Request for Production of Documents”; (c) “Provided non-responsive or evasive responses to the Special Interrogatories and Request for Admissions”; and (d) “Did not verify any responses.” Thus, plaintiff either did not provide any further written responses or documents, or he provided in some instances evasive and unverified responses, or responses containing the same meritless objections, all contrary to the trial court’s order.
The February 10, 2010, discovery order also required plaintiff to attend a deposition to be scheduled by defendants. Instead of complying, plaintiff interposed a variety of meritless demands and ultimately failed to appear at his deposition. Plaintiff demanded as preconditions that the deposition be moved to a closer location (even though it was scheduled for a location well within the statutory limits), demanded that he be provided with a full list of all questions in advance, and he unilaterally announced the deposition could not last longer than one hour. When defense counsel warned plaintiff that if he failed to appear at his deposition, relief would be sought from the court, including terminating sanctions, plaintiff reiterated his prior demands and responded, “‘[I]t seems that since you can’t impress me with your intelligence, you intend to try to baffle me with B.S.’” Plaintiff then failed to appear for his deposition.
In its written order granting terminating sanctions, the trial court reviewed the pleadings and discovery in the case and found that plaintiff had “engaged in obstructionist tactics to impede or prohibit discovery,” in defiance of the trial court’s discovery orders. As the trial court explained: “Plaintiff, as he did in the pleading stage, raises meritless objections and unilaterally acts, or in this case unilaterally fails to act (i.e.[,] fails to provide[] verified responses to written discovery, fails to provide meaningful responses or production, fails to appear at his deposition, etc.) all in an apparent attempt to further delay these proceedings and all contrary to the court’s earlier orders.” The trial court concluded, “based on the totality of the circumstances,” that plaintiff’s actions were “willful” and terminating sanctions were warranted. Considering the meritless nature of plaintiff’s repeated discovery objections, his baseless demands and conditions on appearing at his deposition, his obvious disregard of the trial court’s unequivocal order compelling responses and deposition attendance, his repeated delays, and the prejudicial effect on defendants of such delays and the inability to obtain discovery, we quite agree. We find no abuse of discretion.
The trial court organized its thorough analysis based on Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246, which held that in considering a motion for terminating sanctions a court looks at the totality of the circumstances, including the following factors: (1) the party’s conduct, as indicating whether the actions were willful; (2) the detriment to the party seeking discovery; and (3) the number of formal and informal unsuccessful attempts to obtain discovery.
Also, we note that lesser sanctions have proved to be unavailing. As the trial court observed, monetary sanctions were ordered against plaintiff on at least two prior occasions.
DISPOSITION
The order and judgment of the trial court are affirmed. Costs on appeal are awarded to defendants.
WE CONCUR: Gomes, Acting P.J., Detjen, J.