Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., No. BC380137 Edward Ferns, Judge.
Law Offices of Frank Barilla, Frank Barilla; Law Offices of Roy L. Comer and Roy L. Comer for Defendants and Appellants.
Scott A. Meehan for Plaintiff and Respondent.
RUBIN, J.
Defendants and appellants Giovanni’s Human Hair, Inc. (GHH), Pauline Hix and Steve Hix (collectively appellants) appeal from the default judgment entered against them and in favor of plaintiff and respondent Giovanni & Son, LLC (respondent) on June 19, 2009, following entry of their default as a discovery sanction. Appellants contend imposition of a terminating sanction for discovery abuse was an abuse of discretion. We affirm.
Because the individual appellants have the same last name, we respectfully refer to them by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arises out of a dispute over use of variations of the name “Giovanni” by two businesses, both engaged in the sale of human hair for wigs and extensions, as well as related products. Respondent’s 10-count complaint alleged causes of action for trade name and trademark infringement, unfair competition and related torts, and sought damages and injunctive relief.
A. The August 4, 2008 Discovery Order
The original complaint was filed in November 2007. Respondent amended the complaint to substitute GHH for Doe 1. (See Code Civ. Proc., § 474.) The first amended complaint sought, among other things, monetary damages in excess of $500,000 for unjust enrichment. After their demurrer was overruled, appellants answered the first amended complaint on April 22, 2008, generally denying the allegations and asserting various affirmative defenses.
All undesignated statutory references are to the Code of Civil Procedure
The first amended complaint was later amended to substitute named defendants for Doe defendants. The former Doe defendants successfully demurred to the second amended complaint and a third amended complaint was filed a few days before appellants’ default was entered. The third amended complaint also sought damages in excess of $500,000 for unjust enrichment.
Respondent noticed Steve’s deposition for June 30, 2008. The deposition notice included a request to produce certain documents including GHH business records. Steve did not object to the notice to produce documents. (See § 2025.410, subd. (a) [failure to serve timely written objections constitutes waiver].) A few days before the scheduled deposition date, appellants’ counsel informed respondent’s counsel that Steve would not be appearing at his scheduled deposition.
On July 11, 2008, after respondent’s counsel tried but failed to reach agreement on a new date for the deposition, respondent moved to compel Steve’s attendance pursuant to section 2025.450 (motion to compel party to attend and/or produce documents at deposition) and for monetary sanctions pursuant to sections 2023.030 and 2025.480, subdivision (f). Neither the notice of motion nor the motion itself specifically referred to the notice to produce documents at the deposition, although it was attached as an exhibit to the motion.
The motion was set to be heard on Monday, August 4, 2008. One week before the hearing, respondent’s counsel filed a declaration that he had not received any opposition to the motion to compel. Respondent’s counsel received an opposition on Monday, August 4, which was the day of the hearing. At the hearing, appellants’ counsel explained the late filing: “The reason is, Your Honor, I have been engaged in multiple criminal immigration matters besides my civil practice, and I was able [to] get through it then.” Without indicating whether or not it was considering the late filed opposition, the trial court granted respondent’s motion to compel Steve to appear at his deposition on or before September 3, but denied the request for monetary sanctions (the August 4 order). Neither the minute order nor the notice of ruling mentioned the request to produce documents.
B. The August 25, 2008 Discovery Order
Respondent initially noticed Pauline’s deposition for March 31, 2008, and requested that she produce the same documents it later requested that Steve produce at his deposition. Pauline did not object to the notice to produce. (See § 2025.410, subd. (a).) Appellants’ counsel twice called at the last minute to reschedule Pauline’s deposition. On the rescheduled date of May 27, Pauline did not appear and did not produce any documents. Respondent’s counsel agreed to reschedule the deposition a third time, to June 20.
Pauline appeared on June 20, 2008, and produced some but not all of the requested documents. The deposition was continued to July 16, and Pauline was told to bring the remaining responsive documents on that date. Pauline appeared on that date, but once again failed to produce all of the documents described in the notice. The deposition was continued to the following afternoon to give Pauline a chance to gather those documents. Pauline appeared the next afternoon, but did not produce any additional documents. The deposition was suspended for respondent to file a motion to compel Pauline to produce the documents described in the notice.
Respondent subsequently moved to compel Pauline to produce documents at her deposition pursuant to section 2025.450, subdivision (a), and sought monetary sanctions pursuant to sections 2023.030, subdivision (a) and 2025.480, subdivision (f). On August 25, 2008, the trial court ordered Pauline to “respond to the document requests, within 15 days, by either producing responsive documents or following the requirements of [section] 2031.230. [¶]... [¶] [Pauline] may not raise any objections to the document request as she has waived her right to do so” (the August 25 order).
Section 2031.010 et seq. governs inspection demands, not deposition notices. Section 2031.230 reads: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” Appellants’ assertion that the trial court was without authority to order a response that complied with section 2031.230 because that section governs document production requests not deposition notices is not well taken. First, failure to so object in the trial court constitutes a waiver of the issue on appeal. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1227.) Second, ordering a recalcitrant deponent to make the representations called for by section 2031.230 is within the trial court’s inherent power to deal with litigation abuse, even if it is not a sanction expressly articulated in section 2025.450. (See Stephen Slesinger, Inc. v. Walt Disney (2007) 155 Cal.App.4th 736, 763 [power to impose sanctions under the discovery act supplements but does not supplant the court’s inherent power to deal with litigation abuse]; cf. § 2025.450, subd. (d) [authorizing trial court to “make those orders that are just” against a party who does not comply with an order compelling production or attendance at a deposition].)
In the same order, the trial court also granted respondent’s motion to compel the depositions of the former Doe defendants and for monetary sanctions in the amount of $500 relating to that discovery.
C. The October 7, 2008 Discovery Order
Steve’s court-ordered deposition was scheduled for noon on August 29, 2008. At 11:30 a.m. that day, appellants’ counsel left a voice mail message for respondent’s counsel that Steve and counsel would be late. Although Steve had never served any response to the notice to produce documents at his deposition, much less sought or obtained any protective order that he was not obligated to produce responsive documents (see § 2025.420), appellants’ counsel informed respondent’s counsel that Steve would not produce any documents at the deposition because he had not been ordered to do so. Steve and his counsel appeared at the deposition at 2:15 p.m., without any documents. Several weeks later, on October 14, Steve served a response to the notice to produce documents.
The objection is, of course, specious. It is well settled that civil discovery is self-executing. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281.)
Steve responded to request Nos. 16, 17, 28 and 29 as follows: “I am not aware that any such documents exist and I have not been able to locate any after a diligent search. Discovery is still continuing.” The response to request No. 28 also indicates some documents were produced. He responded to request Nos. 44, 45, 46, 47, 48, 55, 56 and 57 as follows: “None at this time[.] Discovery is still continuing.” He responded to the remaining requests as follows: “Documents, if any, have been and will be produced.”
Meanwhile, Pauline’s court-ordered deposition was scheduled for September 23, 2008. On September 12, Pauline served a response to the notice to produce documents. This was 18 days after the date of the court order, not the court-ordered “within 15 days” of the order. Moreover, contrary to the trial court’s order, Pauline’s response included objections and the response did not comply with section 2031.230 dealing with inability to produce.
Although the trial court found that Pauline had waived any objections to the document request, Pauline’s response included the following objection to request Nos. 5, 6, 7, 11 and 19: “Documents requested are not relevant nor are they calculated to lead to the discovery of admissible evidence and constitute an invasion of privacy. However, without waiving the objection, Documents, if any, have and will be produced.” Pauline responded to request Nos. 46, 47, 48, 49, 56, 57 and 58 as follows: “None at this time[.] Discovery is still continuing.” She responded to the remaining requests as follows: “Documents, if any, have been and will be produced.”
On September 15, 2008, respondent made two discovery motions: (1) to compel Steve to produce documents at his deposition and for monetary sanctions; and (2) to strike GHH and Pauline’s answer as a sanction for Pauline’s failure to comply with the August 25 order and for monetary sanctions. Appellants opposed both motions on the grounds that they were not brought in good faith, respondent’s counsel had failed to properly meet and confer, and the notices of deposition and request for production were untimely.
At the October 7, 2008 hearing on the motions, appellants’ counsel reiterated the specious argument that Steve did not produce documents at his deposition because he had not been ordered to do so. As for Pauline, he argued that appellants had “produced as much as we can.” Counsel did not explain why Pauline did not file a response which complied with section 2031.230, as she was ordered to do.
The trial court granted the motion to compel Steve to appear and produce documents at his deposition, and for sanctions in the amount of $3,865. It ordered Steve to produce documents “without objection, or submit a statement of inability to comply pursuant to... section 2031.230, by 10:00 a.m. on 10-13-2008, ” and to appear for deposition at 11:00 a.m. on October 21. The trial court denied the motion to strike GHH and Pauline’s answers, but ordered Pauline to appear for deposition at 9:00 a.m. on October 20 and to pay sanctions in the amount of $3,015.
D. The October 31, 2008 Order Granting Terminating Sanctions
On October 13, 2008, Steve did not produce any documents and did not serve the court-ordered response. That day, appellants’ counsel told respondent’s counsel that appellants were still copying the responsive documents; he promised the documents would be produced the following day. At 9:35 a.m. on October 14, respondent’s counsel gave notice that, at 8:30 a.m. the next morning, October 15, he would make an ex parte application for an order shortening time to bring a motion for terminating sanctions against appellants for their failure to comply with prior discovery orders. At a little after 10:00 a.m., appellants’ counsel informed respondent’s counsel that he would be unable to attend the ex parte hearing and that appellants were still copying documents. At 4:51 p.m. that day, appellants delivered documents and verified responses.
The next morning, the trial court granted respondent’s ex parte application for an order shortening time to hear a motion to strike the answers of each appellant as a sanction for their misuse of the discovery process. Hearing on the motion was set for October 30, 2008 and appellants were ordered to serve any opposition to the motion on or before October 22. According to the motion, it was the 10th discovery motion made by respondent, including the multiple motions to compel Steve and Pauline to attend and produce documents at their depositions. Pauline’s deposition resumed on October 20; Steve’s resumed on October 21. Steve produced some additional documents at his deposition but neither appellant ever filed the court-ordered response that complied with section 2031.230.
In their opposition to the motion for terminating sanctions, appellants argued “there was nothing absolutely critical about producing the documents” on the court-ordered date since the documents were produced a week before Pauline’s continued deposition was to take place. Respondent pointed out that “[n]oticeably absent [from the opposition] is any declaration that [appellants] have produced all documents requested.... [¶] [Appellants] attempt to confuse the underlying issue by suggesting that their only transgression was producing documents after the deadline set by the court. The real and continuing problem is that [appellants] have never produced all requested documents and continue to assert objections to their production.” (Boldface omitted.) In a declaration, respondent’s counsel stated that he personally reviewed all of the documents produced by appellants on October 14, 2008, and the additional documents produced by Steve at his deposition. Counsel described the requested documents that had not been produced. These included canceled checks, customer invoices, shipping records, contact information for former employees, Steve’s and Pauline’s personal bank records, their personal tax records, corporate by-laws, a complete customer list and unreadacted emails. Counsel averred that Pauline and Steve testified at their respective depositions that they did not produce these records, [and] in some cases did not even look for them.
On October 31, 2008, the trial court granted respondent’s motion for terminating sanctions and entered appellants’ default. In its minute order, the trial court explained that after it “issued repeated orders requiring the production of documents directly relevant to this matter, [appellants] produced some documents, but withheld documents which concern the heart of [respondent’s] case, i.e., documents which would show whether or not [appellants’] business, which uses a name similar to the [respondent’s] business, used [respondent’s] confidential and proprietary information, and other assets belonging to [respondent], in order to replicate [respondent’s] business, and whether or not [appellants] profited from the assets belonging to the [respondent]. [¶] This order is not being granted because the [appellants] were late with their production, but because [appellants] refuse to produce those documents which concern the major issues in this matter.... ”
Appellants moved for reconsideration of the order entering their defaults on the grounds that “a different and/or new state of facts and/or circumstances exist[].” The gist of their motion was that no discovery had been propounded directly upon GHH and that Pauline and Steve “did to the best of their ability comply with the court’s order, they did supply verified responses and documents of several hundred pages....” Along with that motion, appellants submitted copies of the documents that had been produced. The trial court denied the motion.
Default judgment was entered against appellants on June 19, 2009, as a result of which appellants were enjoined from using the word “Giovanni” as part of their trade name or in advertising and from using respondent’s customer list. In addition, the trial court entered a monetary default judgment in the amount of $500,000, together with attorney fees in the amount of $84,745.50, and costs in the amount of $6,833.35, plus interest.
On August 18, 2009, appellants filed a timely notice of appeal from the default judgment.
DISCUSSION
A. Standard of Review of Discovery Sanction Orders
Failing to respond to an authorized method of discovery and disobeying a court order to provide discovery are both misuses of the discovery process. (§ 2023.010, subds. (d) & (g).) Sanctions which may be imposed for a misuse of the discovery process include “terminating sanctions” such as “an order rendering a judgment by default against that party.” (§ 2023.030, subd. (d)(4).) Terminating sanctions under section 2023.030 may be imposed for disobeying a court order to answer questions or produce documents at a deposition. (§ 2025.480, subd. (g).) Although terminating sanctions are a drastic remedy and should be used sparingly, the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the imposition of terminating sanctions. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) Terminating sanctions are justified where the discovery violation “ ‘is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules....’ [Citation.]” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 297.)
We review a trial court’s order imposing discovery sanctions for abuse of discretion. (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at p. 1217 [affirming evidence preclusion sanction].) We “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.” (Ibid.) However, since the trial court’s discretion must be based on substantial evidence, we must first determine whether substantial evidence supports the factual basis on which the trial court acted, and then determine whether the orders made by the trial court were an abuse of discretion in light of those facts. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430.)
In assessing whether a terminating sanction was an abuse of discretion, the question “ ‘ “is not whether the trial court should have imposed a lesser sanction; rather the question is whether the trial court abused its discretion by imposing the sanction that it chose. [Citation.]” [Citation.]’ ” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1245.) In making this assessment, the trial court should consider the totality of the circumstances, including whether the disobedient party’s conduct was willful, the detriment to the propounding party and the number of formal and informal attempts to obtain the discovery. (Id. at p. 1246.)
B. That the Case Was Not “At-Issue” Is Irrelevant
For the first time in their reply brief and at oral argument, and without citation to any authority, appellants assert that terminating sanctions were inappropriate because the case was not at-issue; i.e., appellants had not filed an answer to the operative third amended complaint, which was filed just days before appellants’ default was entered. At oral argument, respondent countered that the case was at-issue as to appellants, albeit not to the former Doe defendants, because appellants had filed an answer to the first amended complaint and only the former Doe defendants had successfully demurred to the first and second amended complaints. Apart from whether appellants have waived this contention by failing to raise it in the trial court (and failing to cite any authority to support it), we conclude that the contention is without merit. A case need not be at issue before discovery sanctions, including terminating sanctions, can be imposed.
Preliminarily, we note that respondent’s position that the case was at-issue as to appellants, albeit not as to the former Doe defendants, is incorrect. Although a case is at-issue once an answer has been filed, the filing of an amended pleading supersedes an existing one. (Lerner v. Glickfield (1960) 187 Cal.App.2d 514, 525.) Thus, although appellants answered the first amended complaint, the first amended complaint was superseded by the second and then by the third amended complaint. When a complaint is amended after an answer has been filed, the defendant has 30 days to file a new answer (§ 471.5, subd. (a)), or may elect to stand on his original answer. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808-809.) In this case, appellants’ time to file a new answer to the third amended complaint or elect to stand on their original answer (as they had done with respect to the second amended complaint) had not expired. Accordingly, the case was not at-issue as to appellants.
But, whether a case is at-issue is irrelevant to whether discovery sanctions are available against a defendant. The right to discovery does not depend on whether a case is at-issue. For example, a plaintiff may serve a deposition notice 20 days after service of summons (§ 2025.210, subd. (b)) notwithstanding that the defendant has 30 days to respond to the complaint (§§ 412.20, subd. (a)(3) & (6), 430.40, subd. (a)). Moreover, discovery continues despite a challenge to the sufficiency of the complaint. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436, fn. 3 [pleading deficiencies do not affect party’s right to conduct discovery]; Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 797 [plaintiff may continue to conduct discovery after demurrer to complaint sustained].) Concomitant with the right to conduct discovery before the case is at issue, is the ability to enforce that right with motions to compel and, if discovery orders are violated, with more severe sanctions.
Moreover, any deficiency in the third amended complaint was necessarily resolved at the default prove-up hearing. A default admits the allegations of the complaint. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829, fn. 6.) If the complaint and the evidence produced at the prove-up hearing state a prima facie case, the judgment will be upheld. (Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 408-409 [“[W]here a cause of action is stated in the complaint and evidence is introduced to establish a prima facie case the trial court may not disregard the same, but must hear the evidence offered by the plaintiff and must render judgment in his favor for such sum, not exceeding the amount stated in the complaint, or for such relief, not exceeding that demanded in the complaint, as appears from the evidence to be just” (italics omitted)].)
C. Entering GHH’s Default as a Discovery Sanction Was Not an Abuse of Discretion
Appellants contend it was an abuse of discretion to enter the default of the corporate defendant, GHH, because no discovery was ever sought of GHH. Respondent counters that the sanction was authorized by section 2025.480, subdivision (g). We find no abuse of discretion.
Under section 2025.480, subdivision (g), if a deponent who disobeys a discovery order “is a party to the action or an officer, director, managing agent, or employee of a party, the court may make those orders that are just against the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010)....” (See also § 2025.450, subd. (d) [“If that party or party-affiliated deponent then fails to obey an order compelling... production, the court may make those orders that are just, including imposition of... a terminating sanction... against that party deponent or against the party with whom the deponent is affiliated”].)
Here, there is no dispute that appellants Pauline and Steve (the disobedient deponents) were “affiliated” with the corporate defendant, GHH. For example, in their opening brief, appellants state: “Appellants Pauline Hix and her husband, Steve Hix, started a company in February, 2007, a company known as Giovanni’s Human H[a]ir, LLC.... On or about July 13, 2007, appellants registered the name of Giovanni’s Human Hair with the United States Patent and Trademark Office. On or about August 8, 2007, the appellants incorporated in the State of California under the name of [GHH].” There is nothing in the record to suggest that Steve and Pauline were not officers, directors, managing agents, and/or employees of GHH. Under these circumstances, the trial court was authorized by both sections 2025.450, subdivision (d) and 2025.480, subdivision (g) to impose a terminating sanction against GHH for Pauline’s and Steve’s disobedience to the August 4, August 25 and October 7, 2008 discovery orders.
Appellants’ reliance on Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, for a contrary result is misplaced. In that case, the trial court dismissed the plaintiff’s complaint after he failed to respond to a document production request. The appellate court reversed because there had not been a prior court order to comply with the document production request (although there had been other discovery orders), and disobedience of a prior order is a prerequisite for dismissal based on discovery abuse. Ruvalcaba is inapposite because, under sections 2025.450, subdivision (d) and 2025.480, subdivision (g), the prerequisite of a prior order is satisfied by a prior order addressed to an officer, director, managing agent, or employee affiliated with the party against whom the terminating sanctions have been imposed. Appellants are incorrect in their assertion, set forth in their reply brief, that section 2025.480 “does not apply to the corporate defendant in this case if no discovery or motion was made against them.”
We are also not persuaded by appellants’ argument that section 2025.480 does not apply because the motions to compel that resulted in the court orders which Pauline and Steve disobeyed did not comply with the procedures set forth in section 2025.480, subdivisions (b) and (d). As we shall explain, the motions complied with those subsections.
a. Section 2025.480, subdivision (b)
A section 2025.480, subdivision (a) motion to compel a deponent to produce documents specified in a deposition notice must be accompanied by a “meet and confer” declaration. (§§ 2016.040, 2025.480, subd. (b).) Here, that requirement was satisfied by respondent’s counsel’s declarations submitted in support of the motions to compel. For example, in the declaration submitted in support of the motion to compel Steve, counsel chronicled his efforts to schedule Steve’s deposition and concluded, “[appellants’ counsel] has failed to return any telephone calls or respond to my written correspondence. In other words, [appellants’ counsel] has completely failed to conduct any effort to meet and confer.” Similarly, in support of the motion to compel Pauline, counsel chronicled his efforts to have Pauline produce documents at her deposition, concluding that he spent two hours “meeting and conferring by coordinating [deposition] dates [and] specifically urging [appellants’ counsel] to remind his client to bring documents....”
By contrast, there is no meet and confer requirement for a section 2025.480, subdivision (g) motion for sanctions for disobeying a prior discovery order. But even if we were to read subdivision (b) as applying to a subdivision (g) motion, counsel’s declaration in support of that motion, which chronicled his efforts to obtain appellants’ compliance with the prior orders, was sufficient to satisfy the requirement.
b. Section 2025.480, subdivision (d)
Subdivision (d) of section 2025.480 requires the party moving to compel compliance with a deposition notice to “lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion.” Subdivision (d) applies to motions to compel made pursuant to subdivision (a), not to motions for sanctions made pursuant to subdivision (g). Moreover, even if we were to read subdivision (d) as applying to a subdivision (g) motion, subdivision (d) requires only that the moving party lodge “relevant” parts of a transcript. Appellants have failed to show that any parts of the deposition transcript were relevant to respondent’s complaint that appellants had not produced all of the documents requested. On the contrary, a reasonable inference from Pauline and Steve’s failure to comply with the trial court’s order to serve the court-ordered response that complied with section 2031.230 is that they had not produced all of the responsive documents in their possession and, in fact, had not made the requisite diligent search for those documents.
Moreover, respondent’s motion for terminating sanctions was filed on October 15, 2008, before Pauline’s and Steve’s court-ordered depositions had occurred on October 20 and 21, respectively. Therefore, at the time the motion was filed, there were no deposition transcripts to be lodged. Respondent’s reply to appellants’ opposition was filed on October 24, four and three days after the depositions had occurred. In a declaration filed in support of the reply, counsel summarized Pauline’s and Steve’s admissions that they had not looked for many of the requested documents. At the hearing on the motion for sanctions, appellants objected that counsel’s declaration constituted inadmissible hearsay. Respondent countered, correctly, that Pauline’s and Steve’s statements at their deposition, which were heard by respondent’s counsel present at the deposition, were admissible as party admissions. (See Evid. Code, § 1220.) In addition, counsel’s declaration that he had inspected the documents produced by Pauline and Steve and that certain categories of documents had not been produced was not hearsay at all.
D. Imposition of Terminating Sanctions Against Pauline and Steve Was Not an Abuse of Discretion
Appellants contend imposition of terminating sanctions against Pauline and Steve was an abuse of discretion because neither of them willfully disobeyed a discovery order. On the contrary, appellants argue, they both provided verified discovery responses and documents were produced. They maintain that Steve did not produce any documents at his deposition because Pauline had already done so. Once again, we find no error.
The service of a deposition notice is effective to require a party-deponent, or an officer, director, managing agent, or employee of a party, to attend and to testify, as well as to produce any document. (§ 2025.280, subd. (a).) The deponent is entitled to notice sufficient to afford him or her time to locate and produce the requested materials. (§ 2020.220, subd. (a).) A party waives any error or irregularity in the notice unless that party serves written objections specifying the error or irregularity. (§ 2025.410, subd. (a).) In addition, any party or deponent may also move for a protective order that, among other things, the requested materials not be produced. (§ 2025.420, subd. (b)(11); see also § 2025.270, subd. (d) [motion or ex parte application to stay deposition pending determination of motion for a protective order].)
If a party or an officer, director, managing agent, or employee of a party fails to produce any document described in the deposition notice, the party giving notice may move for an order to compel production. (§§ 2025.450, subd. (a), 2025.480, subd. (a).) As we have already explained, failure to obey a prior discovery order can result in imposition of terminating sanctions. (§ 2025.450, subd. (d); see also § 2025.480, subd. (g).)
Here, neither Pauline nor Steve objected to the notice to produce documents or moved for a protective order. Thus, they waived any objections they may have had to the timeliness or form of the deposition notices. Appellants complain that respondent’s counsel’s statement that Pauline and Steve did not provide certain documents was unfounded. But they did not submit any evidence to contradict the statement – such as declarations from either appellant that they had made a diligent search and produced every responsive document in their possession. The trial court expressly found that appellants failed to produce documents that were at the heart of the case. Substantial evidence supported that finding. Under these circumstances, we find no abuse of discretion in the trial court’s imposition of terminating sanctions.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: BIGELOW, P. J., FLIER, J.