Bulut v. Halacyan
Filed 9/12/12 Bulut v. Halacyan CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
HACADUR BULUT,
Plaintiff and Respondent,
v.
REUBEN HALACYAN,
Defendant and Appellant.
B231570
(Los Angeles
County
Super. Ct.
No. BC410877)
APPEAL
from a judgment of the Superior Court
of
County. Susan
Bryant-Deason, Judge. Affirmed in part;
reversed in part.
Law
Office of Robert S. Altagen, Robert S. Altagen, Hanwei Cheng and Hal D.
Goldflam for Defendant and Appellant.
Law
Offices of Tony Forberg and Tony Forberg for Plaintiff and Respondent.
* * *
* * * * *
The
issues on appeal concern sanctions for violations of the
sanction for the repeated misuse of the discovery process. We reverse the order awarding a monetary
sanction in the amount of $1,240 for a single discovery abuse because the court
did not hold a noticed hearing prior
to awarding that sanction.
On
March 30, 2009, Hacadur
Bulut filed a complaint, which as subsequently amended, alleged causes of
action for common count money lent, breach
of contract, and fraud. Reuben
Halacyan and Azteca Motors 2, Inc. (Azteca) were named as defendants. According to the operative complaint, the
parties agreed to combine their automobile inventories, sell the vehicles, and
share the profits. But, Halacyan and
Azteca misappropriated the proceeds from the sale of the vehicles.
Following
several unsuccessful efforts by Bulut to obtain discovery from Halacyan and
Azteca, described in detail below, the trial court imposed a terminating sanction,
and then, after a default prove-up hearing, entered judgment in Bulut’s
favor. Halacyan (but not Azteca)
appealed from the judgment.
Interrogatories
On
March 25, 2010, Bulut served special interrogatories on Halacyan and on
Azteca. In addition to questions
concerning Halacyan’s and Azteca’s affirmative defenses, Bulut also requested
information regarding payments made by Bulut to Azteca and payments made by
Azteca to Bulut, as well as information regarding Azteca’s assets and
dissolution. On May 7, 2010, Bulut’s
counsel wrote appellant’s counsel requesting responses to the discovery. Halacyan and Azteca’s counsel did not respond
to the meet and confer letter. On May 20,
2010, Bulut filed a motion to compel Azteca and Halacyan to provide verified,
objection-free responses to the special interrogatories and sought monetary
sanctions. Halacyan and Azteca filed no
opposition. Halacyan and Azteca’s
counsel did not appear at the hearing on the motions to compel.
The
court ordered Halacyan and Azteca “to provide . . . counsel with written
verified responses without objection to the special interrogatories.†The court also ordered Halacyan to serve
responses by July 12, 2010, at 12:00 p.m.
Halacyan and Azteca violated this court order; they did not serve
responses to the special interrogatories on July 12, 2010. Undated interrogatory responses from Halacyan
are included in our record, but they contain no verification and numerous
objections.
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are evasive.
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the responses on July 29, 2010, and additional responses on November 23, 2010,
but never received the objectionless responses the trial court had ordered.
Depositions
On
March 12, 2010, Bulut served notice of deposition of Arto Zakaryan, who Bulut
described as a person most knowledgeable on behalf of Azteca, and a demand for
the production of documents. The
document request included all agreements, communications, and payments between
Bulut and Azteca in addition to documents regarding Azteca’s inventory and
profits. Zakaryan did not appear for
deposition. On May 20, 2010, Bulut filed
a motion to compel Zakaryan to attend a deposition and produce the documents
requested. Bulut’s counsel represented
that Halacyan and Azteca had produced no documents. Halacyan, Azteca, and Zakaryan did not oppose
the motion. The court ordered Zakaryan’s
deposition to take place on July 16, 2010, along with the requested
document production.
Also
on March 12, 2010, Bulut served a notice
of deposition of Halacyan and requested the production of documents from
Halacyan. Among other things, the
request for production sought documents evincing an agreement between Halacyan
and Bulut, communications between Halacyan and Bulut, and documents regarding
payments from Halacyan to Bulut.
Additionally, Bulut sought documents showing the sales of motor
vehicles. Halacyan failed to
appear. Bulut moved to compel the
deposition and Halacyan did not oppose the motion. The court ordered Halacyan’s deposition to
take place on July 15, 2010, and ordered Halacyan to produce the requested
documents on that day. The court awarded
Bulut sanctions in the amount of $2,400.
It is undisputed that Halacyan did not appear for his deposition on the
court-ordered date.
On
June 9, 2010, Bulut served Halacyan’s accountant, Aram Aginian, with a
deposition subpoena for the production of documents. Aginian failed to appear on the scheduled date
and informed Bulut’s counsel that Halacyan advised him he did not need to
appear for the deposition. When Aginian
subsequently appeared for deposition, he did not bring any responsive
documents. Bulut represented that the
documents were necessary to show Halacyan embezzled money.
Requests for Admission
On
May 28, 2010, Bulut served requests for admission set three. On August 2, 2010, Bulut’s counsel appeared
for an ex parte application for an order or in the alternative to shorten time
on a motion to deem Bulut’s requests for admissions set three to Halacyan be
deemed admitted. The requests for
admission concerned whether payments made by Azteca were for Halacyan’s
personal expense.
In
written opposition, Halacyan and Azteca opposed the motion to have the requests
for admission deemed admitted. Halacyan
and Azteca argued that the motion to have the requests for admission deemed
admitted was not timely and that sanctions may be awarded only following a
noticed motion and hearing.
On
August 6, 2010, the court granted Bulut’s ex parte application to have his
requests for admission set three deemed admitted and awarded him sanctions in
the amount of $1,240.
Motion for Terminating Sanctions
On
August 2, 2010, Bulut sought issue, evidence, and terminating sanctions. Bulut argued terminating sanctions were
appropriate because Halacyan and Azteca repeatedly misused the discovery
process and disobeyed a court order regarding discovery.
At
a hearing on December 6, 2010, the court stated that Bulut was unable to obtain
discovery from Halacyan and Azteca. The
court considered awarding an evidentiary sanction but concluded that the
discovery abuses warranted a terminating sanction. On December 10, 2010, the court granted a
terminating sanction.
Halacyan
argues that the court erred in imposing a terminating sanction and that the
court erred in awarding monetary sanctions on Bulut’s motion to deem the
requests for admission admitted. We
discuss his arguments seriatim, concluding that only the latter has merit.
Terminating Sanctions
A
trial court’s choice of sanctions with respect to discovery matters is reviewed
on appeal for abuse of discretion. (
168, 175; Sauer v. Superior Court
(1987) 195 Cal.App.3d 213, 228 (Sauer).) “‘Discretion is abused whenever, in its
exercise, the court exceeds the bounds of reason, all of the circumstances
before it being considered. The burden
is on the party complaining to establish an abuse of discretion, and unless a
clear case of abuse is shown and unless there has been a
will not substitute its opinion and thereby divest the trial court of its
discretionary power.’ [Citations.]†(Denham
v. Superior Court (1970) 2 Cal.3d 557, 566.) In applying the abuse of discretion standard,
“[w]e presume the trial court was aware of its various options in imposing an
appropriate sanction and we will not select a sanction different from that
within the trial court’s discretion.†(
with the trial court’s 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, 882.)
Sanctions,
including terminating sanctions, are appropriate for the misuse of the
discovery process. (Code Civ. Proc., §
2023.030, subd. (d).) “Failing to
respond to an authorized method of discovery†is a misuse of the discovery
process. (§ 2023.010,
subd. (d).) So is making an evasive
response to discovery (id., subd.
(f)) and “[d]isobeying a court order to provide discovery†(
good faith constitutes a misuse of discovery.
(Id., subd. (i).)
“If
a party fails to obey an order compelling answers to special interrogatories
and/or an order compelling a response to a demand for production of documents,
the court may impose a terminating sanction.â€
(Van Sickle v. Gilbert (2011)
196 Cal.App.4th 1495, 1516.) Terminating
sanctions are authorized when a party has failed to obey an order compelling
attendance at a deposition. (Code Civ.
Proc., § 2025.450, subd. (d).) “Repeated
failure to respond to discovery and to comply with court orders compelling
discovery provides ample grounds for imposition of the ultimate sanction.†(Jerry’s
Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069.)
Here,
the trial court did not abuse its discretion in awarding terminating
sanctions. Halacyan failed to respond to
special interrogatories and failed to appear at his deposition. Bulut was forced to file a motion to compel,
which Halacyan did not oppose. The court
then ordered Halacyan to provide verified objectionless responses to the
interrogatories and to appear at deposition on July 15, 2010. Halacyan failed to comply with the court
order. Although Halacyan eventually
answered the interrogatories, his responses violated the orders because they
were not verified and contained numerous objections.
concerning his own information, Halacyan also improperly advised his accountant
that he was not required to appear for deposition. Given Halacyan’s numerous discovery misdeeds
and his violation of court-ordered discovery, the trial court did not abuse its
discretion in ordering terminating sanctions.
(Parker v. Wolters Kluwer United
States, Inc. (2007) 149 Cal.App.4th 285, 297 [no abuse of discretion in
awarding terminating sanction for repeated discovery abuse];
(2005) 134 Cal.App.4th 1161, 1183-1184 [same].)
None
of Halacyan’s arguments has merit.
Halacyan’s claim that the terminating sanction was punitive and a lesser
sanction would have sufficed is unpersuasive because the record shows a lesser
sanction did not suffice. For example,
the court previously ordered Halacyan to provide verified responses to the
interrogatories without objection.
Halacyan simply ignored the order.
Halacyan’s contention that an evidentiary sanction would have been
sufficient does not show that the court abused its discretion in awarding a
terminating sanction. (
[If an appellant presents facts that merely afford an opportunity for a
difference of opinion, “the appellate court is neither authorized nor warranted
in substituting its judgment for that of the trial courtâ€].)
Finally,
Halacyan’s reliance on Wilson v.
Jefferson (1985) 163 Cal.App.3d 952 is misplaced. In that case, the court recognized the
general principle that “‘there is no question that a court is empowered to
apply the ultimate sanction [of a default judgment] against a litigant who
persists in the outright refusal to comply with his discovery obligations
[because] the refusal to reveal material evidence is deemed to be an admission
that [his] . . . defense is without merit.’â€
(Id. at p. 958.) The court, however, held the general
principle was inapplicable in that case because the only discovery the
appellant had refused to answer concerned an affirmative defense, which was not
dispositive of other issues in the case.
(Id. at pp. 958-959.) Here, in its interrogatories, Bulut sought
information on Halacyan’s affirmative defenses and on payments made to and from
Bulut. In his requests for documents,
Bulut sought documents to show Halacyan embezzled money, which is critical to
his claim Halacyan misappropriated funds.
Halacyan’s claim that the only discovery he failed to provide concerned
affirmative defenses is not supported by the record. In short, Halacyan does not demonstrate the
trial court abused its discretion in issuing a terminating sanction.
Halacyan
correctly argues the trial court erred in awarding sanctions ex parte. “A sanction order issued ex parte is
void.†(Parker v. Wolters Kluwer U.S., Inc., supra, 149 Cal.App.4th at
p. 296.) The $1,240 sanction
therefore must be reversed.
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The
order awarding $1,240 in sanctions is reversed.
In all other respects, the judgment is affirmed. The parties shall bear their own
FLIER,
J.
We concur:
BIGELOW,
P. J.
RUBIN,
J.
page of “general objections.†Special
interrogatories Nos. 1, 4, 7, 10, 13, 16, 19, 22, 25, 28, 31, 34, 37, 40,
43, 46, 49, 52, 55, 58, 61, 64, 67, 68, and 69 contain specific
objections.
example, Bulut separately requested documents supporting each affirmative
defense and Halacyan responded to each requests as follows: “[a]ll documents previously produced by
Defendants . . .†and “[a]ll documents previously produced by Plaintiff.†With respect to questions regarding documents
related to the dissolution of Azteca, Halacyan responded, “None exist????â€
