Baghikian v. Gibson

Filed 4/30/08 Baghikian v. Gibson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles W. Stoll, Judge. Affirmed.

________

Iman Gibson, in pro. per., for Defendant, Cross-Complainant and Appellant.

Papazian & Melkonian and Geoffrey G. Melkonian for Plaintiff, Cross-Defendant and Respondent.

________

Sarkis Baghikian sued Iman Gibson for nuisance and trespass, and Gibson cross-complained against Baghikian. Gibson did not adequately respond to discovery requests that Baghikian propounded, and she did not comply with the trial courts order requiring her to provide further responses. The trial court ultimately struck Gibsons pleadings, entered her default, conducted a prove-up hearing, and entered judgment in favor of Baghikian. Gibson appeals, and we affirm.

BACKGROUND

According to the allegations in the complaint, Baghikian and Gibson own neighboring parcels of real property. Baghikian is developing a condominium project on his property, and he alleges that Gibson has interfered with and delayed the construction in various ways, such as by verbally harassing Baghikians contractors and calling the local police. Baghikian also alleges that Gibson constructed a concrete block wall that encroaches on his property.^[1]

On October 20, 2005, Baghikian filed his complaint. On December 16, 2005, Gibson answered with a general denial and cross-complained against Baghikian, requesting an injunction and alleging claims for nuisance, trespass, intentional infliction of emotional distress, and negligence. Gibson was initially represented by counsel, but on March 6, 2006, she filed a substitution of attorney stating that she would henceforth be representing herself.

On April 3, 2006, Baghikian filed three motions to compel further responses to discovery requests: one set of form interrogatories, two sets of special interrogatories, and two sets of requests for production of documents. Gibson filed no written opposition to Baghikians motions.

On May 5, 2006, the trial court heard and granted all three motions, awarding Baghikian monetary sanctions of $1,286 and giving Gibson 10 days to respond to the relevant discovery requests. Gibson did not appear at the hearing. The courts minute order states that, on the morning of the hearing, Gibson telephoned the court to say that she was unable to attend because her dog had died.^[2] The court declined Gibsons request to delay the hearing until 10:30 a.m., and the clerk informed her that the hearing would take place at 9:45 a.m., as scheduled. The court mailed a copy of its minute order to Gibson.

On June 2, 2006, Baghikian moved to dismiss Gibsons cross-complaint on the ground that she had failed to comply with the courts order granting the motions to compel. Gibson filed written opposition and asked that the trial judge recuse himself on the ground that healong with another judge, various lawyers and court personnel, local police departments, the Los Angeles Unified School District, and many others as wellwas part of a conspiracy against her.

On July 7, 2006, the trial court heard and granted the motion to dismiss the cross-complaint^[3]and denied the request for recusal. Gibson was present at the hearing. The minute order states that the [m]atter remains set for Post Mediation Status Conference on 7-17-06. The post-mediation status conference was not, however, mentioned at the hearing, and the record on appeal contains no document showing that Gibson received notice of that status conference.

On July 17, 2006, the court held the post-mediation status conference. Gibson did not appear. The court calendared for July 24, 2006, an order to show cause to strike Gibsons answer and enter her default (on unspecified grounds). Both counsel and the clerk were directed to give Gibson notice of the hearing of the order to show cause.

On July 24, 2006, Gibson appeared for the hearing on the order to show cause. The court took no action on the order to show cause and set the matter for a jury trial on December 18, 2006. The clerk was directed to mail a copy of the minute order to Gibson.

On July 28, 2006, Baghikian filed a motion to deem certain facts admitted on the ground that Gibson had failed to provide timely responses to requests for admission. The hearing on the motion was set for September 8, 2006.

On August 4, 2006, Gibson filed an ex parte application for change of venue. The judge who heard the application (who was not the judge who made the other rulings described in this opinion) declined to rule on it and instead continued it to September 8, 2006, to be heard in the original court together with Baghikians then-pending motion.

On August 11, 2006, Baghikian moved to strike Gibsons answer and enter her default, and for an award of sanctions, on the ground that she had still failed to comply with the order granting Baghikians motions to compel. The hearing on that motion was calendared for September 8, 2006.

At the hearing on September 8, 2006, the trial court denied Gibsons application for change of venue and granted Baghikians motion to strike, rendering moot the motion to deem facts admitted. The court also ordered Gibson to pay Baghikian sanctions in the amount of $840. The minute order states that Gibson telephoned the court to say she would be late because of a court appearance at another courthouse, but she gave no estimated time of arrival. The court held the matter until the end of its calendar at 11:40 a.m., but Gibson did not appear at the hearing or further communicate with the court. The court ordered Gibsons default entered and set the default prove-up hearing for October 23, 2006.

On October 23, 2006, the court conducted the default prove-up hearing. Gibson did not appear at the hearing. Baghikian testified and also introduced documentary evidence purporting to establish that he had suffered $161,385 in damages. The court took the matter under submission.

On November 7, 2006, the court issued its ruling, awarding Baghikian both $44,985 in damages and a mandatory injunction requiring Gibson to remove the wall that encroached on Baghikians property. The court entered judgment on November 27, 2006. Gibson timely appealed.

DISCUSSION

We review the trial courts imposition of discovery sanctions for abuse of discretion. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) We find no abuse of discretion here. Baghikian filed three motions to compel further responses to discovery requests. Gibson filed no written opposition to the motions. The trial court granted the motions, ordered Gibson to provide the requested discovery responses, and imposed monetary sanctions. The court mailed a copy of its order to Gibson, and she does not deny receiving it. To date, she has never complied with the order or indicated any willingness to comply. Because of Gibsons continuing defiance of the courts order granting the motions to compel, the court ultimately struck Gibsons answer and entered her default. We have previously affirmed the imposition of such sanctions in similar circumstances. (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1613-1616 [affirming the imposition of terminating sanctions for violation of a single discovery order].) For all of these reasons, we conclude that the trial court did not abuse its discretion when it struck Gibsons answer and ordered entry of her default.

Gibsons arguments to the contrary are not persuasive. Her brief is devoted principally to describing the covert criminal consp[i]r[a]cy against her. She does not explain, however, how the alleged existence of that conspiracy would excuse either the disregard of her discovery obligations or her failure to comply with the trial courts discovery order.

Gibsons arguments on more specific points fail as well. Gibson argues, for example, that the judgment is void because the trial court should have granted her motion for change of venue, and that the trial court therefore lacked jurisdiction. We disagree. Gibsons venue argument is based on her contention that the case should have been litigated in a courthouse in her city of residence, but venue rules determine only the county (or counties) within which the action may be tried, not the specific courthouse within the county. (See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007)  3:450.) Gibson does not deny that the real property at issue in this lawsuit is located in Los Angeles County. Venue in the Los Angeles County Superior Court was therefore proper. (Code Civ. Proc.,  392, subd. (a)(1).) Because the allegedly improper venue is the sole basis for Gibsons claim that the trial court lacked jurisdiction, we must reject it.

Gibson also argues that Baghikians motions to compel were untimely because neither she nor her attorney (when she had one) granted Baghikian the necessary extension of time for the motions. More precisely, she claims that Baghikians attorney did not talk to Gibsons attorney about getting an extension until after Gibson discharged her attorney on March 6, 2006. The augmented clerks transcript, however, contains a letter from Gibsons attorney to Baghikians attorney, dated February 16, 2006 (and stamped Received, presumably by Baghikians attorney, on the same day), in which Gibsons attorney granted the necessary extension.

Gibson further argues that the reason she failed to respond to the discovery at issue was that in a telephone conversation on March 9, 2006, Baghikians attorney told her that he was going to dismiss the whole case. Be that as it may, Baghikian did not dismiss the case and instead filed three motions to compel. Gibson had notice of the motions but failed to file opposition, and she had notice of the order granting the motions but failed to comply. Baghikians attorneys alleged promise to dismiss the case does not excuse Gibsons noncompliance or show that the trial court abused its discretion by imposing terminating sanctions.

Although we conclude that Gibsons arguments fail, we do not find her appeal so wholly lacking in merit as to warrant a determination that it was frivolous or taken solely for delay. (Code Civ. Proc.,  907.) We therefore deny Baghikians motion for sanctions.

DISPOSITION

The judgment is affirmed. The motion for sanctions is denied. Respondent shall recover his costs of appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P. J.

JACKSON, J.^*

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^[1] Baghikian testified at the default prove-up hearing that the wall encroaches four inches onto his property.

^[2] Gibson claims that her dog was killed at the direction of a superior court judge in furtherance of a conspiracy against her.

^[3] The minute order stated that the dismissal was without prejudice. The reporters transcript of the hearing, however, reflects that the court stated that the dismissal was with prejudice. At a subsequent hearing on July 24, 2006, the trial court read aloud the relevant passage of the reporters transcript and, on that basis, entered an order changing the July 7, 2006, minute order nunc pro tunc to reflect that the dismissal was with prejudice. Gibson argued that the reporters transcript was inaccurate and had been changed.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)