Filed 8/16/16 Peterson v. G. Mazzera Co. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


VICTORIA L. PETERSON,
         Plaintiff and Appellant,
                                                                     A142623
v.
G. MAZZERA COMPANY,                                                  (San Francisco County
                                                                     Super. Ct. No. CGC12-522568)
         Defendant and Respondent.


         Plaintiff and appellant Victoria L. Peterson appeals following the trial court’s
dismissal of her complaint as a sanction for her discovery abuses. She contends the trial
court failed to accommodate her disability as required under California Rules of Court,
rule 1.100 (Rule 1.100) and otherwise abused its discretion in issuing terminating
sanctions. We affirm.
                                                  BACKGROUND
         In July 2012, appellant filed an action against defendant and respondent G.
Mazzera Company alleging causes of action for negligence, breach of the warranty of
habitability, and violation of the San Francisco Rent Ordinance. The complaint alleged
appellant was a tenant in a building in San Francisco and respondent was her landlord. It
further alleged that in April 2011 appellant fell at night in an unlit stairwell in
respondent’s building and suffered a permanent ankle injury.
         In early 2013, respondent filed a separate unlawful detainer action against
appellant.


                                                             1
       In April 2013, appellant’s counsel withdrew and appellant elected to represent
herself. Appellant filed various requests for disability accommodations under Rule
1.100. Although the particulars of the requests are confidential (Rule 1.100(c)(4)), the
relevant circumstances are described below as necessary to resolve appellant’s claim that
the trial court erred in denying her requests, without disclosing appellant’s personal
information.1
       Disputes arose regarding appellant’s compliance with respondent’s discovery
requests, and respondent sought assistance from the court, beginning with motions to
compel filed in April 2013. The discovery proceedings are discussed below, as relevant
to resolution of the present appeal.
       In May 2014, respondent filed a motion seeking terminating sanctions due to,
among other things, appellant’s failure to comply in full with a February order directing
her to appear for a deposition in April. The trial court granted the motion, dismissed the
complaint, and entered judgment in favor of respondent. This appeal followed.
                                       DISCUSSION
I.     Trial Court Did Not Err in Denying Appellant’s Accommodation Requests
       Appellant contends the trial court abused its discretion in issuing terminating
sanctions because the court failed to properly accommodate her disability under Rule
1.100. Rule 1.100 “governs requests for accommodations by persons with disabilities.
Rule 1.100(a) defines ‘persons with disabilities’ to mean persons covered by Civil Code
section 51 et seq. (the Unruh Civil Rights Act), the ADA [Americans With Disabilities
Act], or other applicable state or federal law. [¶] . . . [R]ule 1.100 advances the court
policy ‘to ensure that persons with disabilities have equal and full access to the judicial

1
  Because appellant describes the types of accommodations she requested in unredacted
portions of her opening brief, she has waived confidentiality as to those matters.
Arguably, appellant has broadly waived confidentiality by arguing for reversal based on
violation of Rule 1.100. (See Vesco v. Superior Court (2013) 221 Cal.App.4th 275, 279
[in context of Rule 1.100, stating “[w]hen a party raises her physical condition as an issue
in a case, she waives the right to claim that the relevant medical records are privileged”].)
However, because we can resolve appellant’s claims without disclosing personal
information, it is unnecessary to decide that issue.

                                              2
system.’ ([R]ule 1.100(b).) To fulfill that purpose, [R]ule 1.100(b) requires each
superior court and appellate court to designate at least one person to be the ADA
coordinator to address requests for accommodations. Rule 1.100(c) permits requests for
accommodations to be made ex parte to the ADA coordinator, but requires they be made
‘as far in advance as possible, and in any event must be made no fewer than 5 court days
before the requested implementation date.’ The court has discretion to waive this
deadline. ([R]ule 1.100(c)(1) & (3).) The court must keep confidential all of the
applicant’s information concerning the request unless the applicant waives confidentiality
in writing or disclosure is required by law. ([R]ule 1.100(c)(4).)” (In re Marriage of
James & Christine C. (2008) 158 Cal.App.4th 1261, 1272-1273 (Christine C.); see also
Vesco v. Superior Court, supra, 221 Cal.App.4th at p. 279; Biscaro v. Stern (2010) 181
Cal.App.4th 702, 707–710.)
       Rule 1.100(a)(3) “defines ‘accommodations’ to mean ‘actions that result in court
services, programs, or activities being readily accessible to and usable by persons with
disabilities’ and may include ‘making reasonable modifications in policies, practices, and
procedures; furnishing, at no charge, to persons with disabilities, auxiliary aids and
services, equipment, devices, materials in alternative formats, readers, or certified
interpreters for persons with hearing impairments; relocating services or programs to
accessible facilities; or providing services at alternative sites.’ In responding to a request
for accommodation under [R]ule 1.100, the court ‘must consider, but is not limited by,
California Civil Code section 51 et seq., the provisions of the [ADA], and other
applicable state and federal laws’ ” in determining whether to provide an
accommodation. (Christine C., supra, 158 Cal.App.4th at p. 1273, quoting Rule
1.100(e)(1).)
       “The grounds for denying a request for accommodation are limited: ‘A request for
accommodation may be denied only when the court determines that: [¶] (1) The applicant
has failed to satisfy the requirements of this rule; [¶] (2) The requested accommodation
would create an undue financial or administrative burden on the court; or [¶] (3) The



                                              3
requested accommodation would fundamentally alter the nature of the service, program,
or activity.’ ([Rule] 1.100(f).).” (Christine C., supra, 158 Cal.App.4th at p. 1273.)
       In the present case, the record demonstrates appellant made various requests for
accommodations, such as temporary litigation stays and additional time to file
documents.2 Appellant’s primary contention on appeal appears to be that the trial court
erred in denying her request for stay of the present litigation until completion of
respondent’s separate unlawful detainer action against appellant. However, although the
existence of two simultaneous actions might justify extensions of time or other
accommodations, appellant’s accommodation requests did not establish that her disability
rendered it infeasible for her to be involved in more than one lawsuit at the same time.
(See Christine C., supra, 158 Cal.App.4th at pp. 1274-1275 [scrutinizing factual basis for
request in determining whether accommodation could be denied on basis that “[t]he
applicant has failed to satisfy the requirements of this rule” under Rule 1.100(f)(1)].)
Moreover, appellant has not shown a complete stay of the present action would have been
a reasonable accommodation. Rule 1.100(f)(3) provides that a requested accommodation
may be denied where it “would fundamentally alter the nature of the service, program, or
activity.” Although we need not reach the issue given appellant’s failure to justify the
request, it would appear a trial court could deny an open-ended stay of litigation under
Rule 1.100(f)(3).
       Christine C., supra, 158 Cal.App.4th 1261, does not support appellant’s claim.
There, the appellant, Christine, suffered from both bipolar disorder and cancer. (Id. at p.
1264.) After several other continuances, Christine, representing herself in propia
persona, requested another continuance as an ADA accommodation. (Christine C., at pp.
1264–1269.) She presented a declaration from her psychiatrist “ ‘strongly
recommending’ ” that Christine be hospitalized and estimating Christine would be “ ‘able
to resume normal activities within three months.’ ” (Id. at p. 1269.) In fact, Christine
was hospitalized at the time of trial and sent a friend to appear and explain her

2
 We assume for purposes of the present appeal that appellant has a disability within the
meaning of Rule 1.100.

                                              4
circumstances. (Ibid.) Even though the physician treating her confirmed Christine was
hospitalized, the trial proceeded in her absence. (Id. at pp. 1269–1270.) The Court of
Appeal held it was an abuse of discretion not to grant a continuance, in light of
Christine’s hospitalization and the absence of one of the specified grounds for denial of
the accommodation in Rule 1.100(f). (Id. at pp. 1264–1265.)
       The accommodation request in Christine C. was for continuance of trial; the case
does not stand for the proposition that a party may obtain an indefinite stay of litigation
as an accommodation. Moreover, in Christine C. there was a strong showing of need for
the continuance—among other things, the request was accompanied by her psychiatrist’s
declaration averring Christine needed to be hospitalized and “ ‘granted absolute rest from
any further legal stress.’ ” (Christine C., supra, 158 Cal.App.4th at p. 1269.) In the
present case, appellant points to no medical evidence in the record suggesting her
disability was so severe that an indefinite stay was called for.
       Appellant also suggests the trial court should have appointed a discovery referee,
apparently to serve in a pro bono capacity, as an accommodation under Rule 1.100.
However, she points to nowhere in the record where she requested such an appointment
as an accommodation. The portion of the record she cites is a letter to opposing counsel
wherein she requested that respondent accommodate her disability by making a
“discovery calendar.” Absent a request for a discovery referee under Rule 1.100,
appellant can assert no claim based on denial of the accommodation. We need not and do
not address whether the trial court could have denied such a request under one of the
grounds specified in Rule 1.100(f).
       Finally, appellant suggests the trial court should have removed the case from the
“fast track” (see the Trial Court Delay Reduction Act, Govt. Code, § 68600 et seq.) as an
accommodation under Rule 1.100. Although the record does contain such requests, the
requests were not accompanied by medical documentation showing appellant’s disability
justified such an accommodation. Neither does appellant explain how her discovery
violations and the trial court’s issuance of terminating sanctions resulted from failure to
exempt the case from the fast track rules. That is, appellant has not shown a nexus


                                              5
between her request for an exemption from the fast track rules and dismissal of her
action. The record reflects the trial court issued terminating sanctions because it found
appellant had repeatedly failed to comply with her discovery obligations, not due to any
of the requirements of the Trial Court Delay Reduction Act.
          Appellant’s claim based on denial of her Rule 1.100 accommodation requests
fails.3
II.       Trial Court Did Not Abuse Its Discretion in Issuing Terminating Sanctions
          A.    Background of Discovery Proceedings4
          Because the trial court’s issuance of terminating sanctions was influenced by the
history of discovery noncompliance by appellant, we summarize the trial court’s prior
orders.
          On May 16, 2013, pursuant to respondent’s motion to compel further answers to
form interrogatories, appellant was ordered to pay monetary sanctions in the sum of
$585.00.
          On August 23, 2013, pursuant to respondent’s motion to compel appellant’s
deposition attendance, the trial court ordered plaintiff to appear for deposition on
September 11, 2013. Appellant appeared, but terminated the deposition early, after
testifying for less than three hours. Appellant agreed to return to continue her deposition
and produce documents on October 9, 2013. Appellant canceled the continued deposition
by letter on October 2 and asserted it needed to be rescheduled after November 2.
          On September 27, 2013, pursuant to respondent’s motion to compel answers to
special interrogatories, the trial court ordered plaintiff to answer the special
interrogatories and to pay sanctions in the amount of $800.00. That same day, pursuant
to respondent’s motion to compel answers to form interrogatories, the trial court ordered


3
  Because appellant’s claim fails on the merits, we need not and do not consider whether
appellant’s failure to seek review of the accommodation denials has any effect on the
cognizability of her claims on appeal. (See Rule 1.100(g).)
4
  Aspects of this factual summary are based on declarations submitted by respondent’s
counsel below.

                                               6
appellant to pay additional sanctions in the amount of $1,450.00 due to appellant’s failure
to comply with the court’s May 16 order.
       On November 14, 2013, respondent moved for an order compelling appellant to
produce documents; respondent also requested further monetary sanctions and that the
trial court issue terminating sanctions based on appellant’s violations of the court’s
discovery orders. On February 20, 2014, the trial court denied the motion for terminating
sanctions but directed that appellant appear for a deposition on April 10, 2014 at 10:00
am. The court’s order directed appellant to “produce originals of all documents plaintiff
has previously produced and originals of all additional documents requested by
[respondent.] . . . [Respondent] shall have 30 minutes to review the documents in
[appellant’s] presence and make copies of any documents [appellant] produces for
marking and use at the deposition, as [respondent] elects.” The order specified a
schedule including breaks and stated, “[t]he deposition shall conclude after [appellant]
testifies for 3 hours, at 2:10 pm.”
       According to the declaration submitted by respondent’s counsel in support of
respondent’s motion for terminating sanctions, appellant appeared for the deposition on
April 10, 2014, and “for the first time produced 490 pages of documents.” Respondent’s
counsel further averred that appellant “frustrated the letter and intent of the Court’s
February 20, 2014 order by (1) insisting on making a ‘speech’ regarding many if not
every document produced, taking up 2 plus hours of time and (2) refusing to turn the
documents to the court reporter for photocopying and insisting on keeping possession of
the documents produced and being physically present to observe defense counsel’s staff
copy the documents and return them to plaintiff, requiring several additional hours of
time.” Counsel averred the parties agreed to continue the deposition to April 15, unless
appellant advised counsel otherwise the following morning (April 11); the transcript of
the deposition reflects such an agreement.
       Appellant called respondent’s counsel on April 11, but did not indicate there was
any problem with the April 15 deposition, leaving only her name and number. That same



                                              7
day counsel sent appellant a letter confirming the April 15 deposition. Appellant failed to
appear for the April 15 deposition.
       Respondent filed its motion for terminating sanctions on May 8, 2014. Following
a hearing, the trial court granted the motion and dismissed appellant’s complaint. At the
hearing, the court stated in announcing its ruling, “[i]t appears to the Court that there has
been a continuing and persistent abuse of the discovery process by [appellant] and that
monetary sanctions do not appear to be remedial.”
       B.     Analysis
       “Disobedience of a court order constitutes an abuse of discovery for which the
court may dismiss the action. [Citation.] ‘In choosing among its various options for
imposing a discovery sanction, a trial court exercises discretion, subject to reversal only
for manifest abuse exceeding the bounds of reason.’ [Citation.] . . . ‘[T]he issue before
us is not what sanction we would have imposed, but whether the trial court abused its
discretion in ordering dismissal as a sanction.’ ” (Miranda v. 21st Century Ins. Co.
(2004) 117 Cal.App.4th 913, 928–929; see also Code Civ. Proc., § 2023.010; Los
Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions
may take the form of “[a]n order dismissing the action, or any part of the action, of [the
offending] party.” (Code Civ. Proc., § 2023.030, subd. (d)(4).)
       At the outset, we reject appellant’s assertion the trial court dismissed her action as
a sanction for her failure to pay the previously imposed monetary sanctions. (See
Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610 [“it is an abuse of discretion
for a trial court to issue a terminating sanction for failure to pay” a monetary sanction].)
The trial court’s statement “monetary sanctions do not appear to be remedial” was clearly
intended to convey that monetary sanctions had failed to secure appellant’s compliance
with her discovery obligations. (See Mileikowsky v. Tenet Healthsystem (2005) 128
Cal.App.4th 262, 280 (Mileikowsky) [emphasizing that sanctioned party had “refused to
respond despite the issuance of court orders and monetary sanctions”], disapproved on
another ground in Mileikowsky v. West Hills Hospital & Medical Center (2009) 45
Cal.4th 1259, 1273.) Respondent’s counsel made clear at the outset of the hearing on the


                                              8
motion for terminating sanctions that the request was based on appellant’s violation of
the February 20, 2014 order. We understand the trial court’s decision to dismiss the
action to be based on its finding that appellant violated that order, albeit with appropriate
consideration of the entirety of appellant’s conduct in discovery. (Liberty Mutual Fire
Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106 (Liberty Mutual)
[“the sanctioned party’s history as a repeat offender is not only relevant, but also
significant, in deciding whether to impose terminating sanctions”]; Deyo v. Kilbourne
(1978) 84 Cal.App.3d 771, 796 (Deyo) [“the court must examine the entire record in
determining whether the ultimate sanction should be imposed”].)
       Appellant contends she “acted reasonably and with substantial justification given
the circumstances during the entire discovery process.” (Capitalization omitted.) She
then proceeds to argue the various monetary sanctions imposed on her at earlier stages in
the proceedings were unjustified. Appellant adequately presents her perspective on each
of the discovery disputes, including those that resulted in sanctions, but she fails to
demonstrate the trial court abused its discretion in any of its discovery or sanctions orders
preceding the order issuing terminating sanctions.
       More to the point, appellant disputes she failed to obey the February 20, 2014
order directing her to appear for a deposition on April 10. The most important aspect of
respondent’s claim that appellant violated the order is respondent’s counsel’s averment
below that appellant insisted on “making a ‘speech’ regarding many if not every
document produced, taking up 2 plus hours of time.” This would be a significant
violation of the court’s order, which allowed for only three hours of testimony and
mandated a specific stopping time. In response to that allegation, appellant asserts only
that she “did not give a speech; appellant followed the court order . . . by producing . . .
documents and identified said documents for respondent per court order.” But nothing in
the trial court’s February 20 order directed appellant to identify the documents, much less
permitted appellant to consume most of the allotted time for questioning with such
identification. Appellant does not dispute the document identification took over two



                                              9
hours. Thus, the trial court’s finding that appellant violated its February 20 order is
supported by the record.
        Appellant also disputes she agreed to continue her deposition to April 15. We
conclude respondent’s counsel’s declaration and the April 10 deposition transcript
provide ample support for a finding that appellant violated an agreement to appear for the
continued deposition that day. Because the trial court could properly base the terminating
sanctions on violation of the February 20 order, we need not decide whether violation of
the agreement to continue to April 15 could alone support terminating sanctions.
(Compare Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579,
1584 [“without a disobeyed court order a terminating sanction was improperly imposed”]
with Mileikowsky, supra, 128 Cal.App.4th at pp. 278-279 [basing terminating sanctions
on violation of a stipulation].) In any event, the trial court could properly consider
appellant’s conduct after April 10 in deciding whether to issue terminating sanctions.
(Liberty Mutual, supra, 163 Cal.App.4th at p. 1106; Deyo, supra, 84 Cal.App.3d at p.
796.)
        “A decision to order terminating sanctions should not be made lightly. But where
a 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, the trial court is
justified in imposing the ultimate sanction.” (Mileikowsky, supra, 128 Cal.App.4th at pp.
279–280.) Although appellant did not entirely refuse to participate in discovery, the
record demonstrates that she repeatedly interposed obstacles and failed to substantially
comply with her obligations. The record also shows that monetary sanctions were
ineffective. “The trial court was not required to allow [appellant] to continue [her]
stalling tactics indefinitely.” (Liberty Mutual, supra, 163 Cal.App.4th at p. 1106; see also
Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069;
Mileikowsky, at p. 280.) The trial court found appellant had already been provided




                                             10
sufficient opportunity to comply with her obligations and terminating sanctions were
justified; we cannot say the trial court abused its discretion in so finding.5
                                       DISPOSITION
       The trial court’s judgment is affirmed. Costs on appeal are awarded to respondent.




5
  We reject appellant’s contention it was a violation of due process for the trial court to
change its tentative ruling, which apparently denied the request for terminating sanctions.
Respondent’s motion for terminating sanctions itself provided adequate notice; appellant
cites no authority to the contrary. We decline to consider other passing contentions made
by appellant in her briefing that are unsupported by adequate reasoning and citations to
the record and authority. (Placer County Local Agency Formation Com. v. Nevada
County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814 [“We need not
address points in appellate briefs that are unsupported by adequate factual or legal
analysis.”].)

                                              11
                     SIMONS, J.




We concur.




JONES, P.J.




BRUINIERS, J.




                12
