Filed 7/1/16 Le v. Blue Tax, Inc. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT


ANNIE LE,                                                            B259507

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC490731)
         v.

BLUE TAX, INC. et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Soussan G. Bruguera, Judge. Reversed.


         Duchrow & Piano, David J. Duchrow, and Jill A. Piano for Plaintiff and
Appellant.


         Makarem & Associates, Ronald W. Makarem, Jean-Paul Le Clercq, Law Offices
of Roshni F. Ghandhi, and Roshni F. Ghandhi for Defendants and Respondents.


                                ___________________________________
       Plaintiff and appellant Annie Le sued her former employer, respondent Blue Tax,
Inc.,1 alleging claims for race and disability discrimination and harassment under the Fair
Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.),2 Labor Code wage
violations, and related wrongs. The trial court granted Blue Tax’s motion for terminating
sanctions for discovery abuse.3 We reverse.
                                          FACTS
Background
       Because Le’s appeal arises in a pre-trial context, we state the facts as alleged in
her operative pleading. We accept Le’s alleged facts as true solely for purposes of
addressing her appeal. With this framework in mind, we turn to the facts.
       Le is Vietnamese, and has the physical condition “known as Strabismus.” Le’s
complaint describes her condition as “a cosmetic disfigurement in which the two eyes do
not line up in the same direction, and therefore do not look at the same object at the same
time. The condition is more commonly known as ‘crossed eyes.’” In accord with the
FEHA’s statutory definition of physical disability (see §§ 12926; 12955.3), Le alleges
that her condition “impairs [her] life activities including seeing and working.”4

1
         Our references to Blue Tax include respondents David Urbas and Todd Lewis,
both of whom are alleged in Le’s action to be managing agents of the business. We will
refer to Urbas and Lewis individually only as needed for clarity. Le also sued David
Guaracha, another alleged Blue Tax manager, but dismissed him from her action shortly
after it was filed because, she says, he filed a bankruptcy case. Guaracha is not a party to
Le’s appeal.
2
      All further undesignated section references are to the Government Code except as
otherwise noted.
3
       We construe the trial court’s order to be an appealable judgment of dismissal in
substance. By a subsequent order on Le’s motion to tax costs, the court awarded a total
of $5,439.85 in costs in favor of Blue Tax.
4
       In our independent research, we had have found no case affirming a fact-finder’s
determination that Strabismus is a physical disability as defined within any employment
discrimination statutes.


                                              2
       In April 2010, Blue Tax hired Le to “handle” tax returns for its clients. “Even
though [Le] clocked out after [eight] hours, she worked nine hours or more each work
day” without being paid overtime wages. Further, Blue Tax “fail[ed] to provide rest
periods for every four . . . hours . . . worked per day and fail[ed] to provide compensation
for such unprovided rest periods . . . .”
       On July 20, 2011, Le arrived for work at 6:50 a.m. Later in the day, a Blue Tax
manager, David Guaracha (see footnote 1, ante), “attempted to give [Le] a disciplinary
write-up for being late even though her normal scheduled time to come in was at 8:00
a.m.” Still later that day, apparently after leaving work, Le “found out” that Guaracha
had sent an email to a number of other Blue Tax managers, “making fun of [her] eye
disability and broken English,” and “attaching a picture of an ugly, cross-eyed dog” to the
email. One of the managers had sent an email back to Guaracha stating, “I hate having to
listen to Annie talk. All I see now is the dog picture.” Another Blue Tax manager,
respondent Lewis (see footnote 1, ante), responded to Guaracha’s email with a comment,
“LOL,” meaning “laughing out loud.” No manager at Blue Tax made any effort to stop
the emails or challenge any person for circulating the emails.5
       The day after Guaracha’s offensive email “surfaced,” he “went through” Le’s
personal email folder on her work computer and found an email that she had written to
her husband (a co-worker at Blue Tax) venting her frustration that Guaracha would not
allow her to take time off from work even though he allowed other employees to do so.
Shortly thereafter, Lewis called Le into his office where he handed her a “write-up” for
“a misuse of company email” and also for stating to other employees during her lunch
break, “this is bullshit, things will never change here.” Lewis suspended Le for two days.


5
       There is no allegation in Le’s FAC as to how she “found out” about or obtained
copies of these emails. Blue Tax asserts in its brief that Le “later admitted under oath
that she unlawfully accessed her managers’ private computers from her home, which is
how she became aware of the dog photograph email . . . .” However, the cite to the
appellate record for this assertion, clerk’s transcript at pages 130-131, shows no such
admission. Assuming a “hacking” scenario is true, the issue of computer wrongdoing is
not a matter for the discovery sanction issues involved in Le’s appeal.

                                             3
       When Le returned to work from her suspension on July 25, 2011, Lewis handed
her a final paycheck and terminated her employment.
Le’s Lawsuit
       In August 2012, Le sued Blue Tax. In September 2013, Le filed her operative first
amended complaint (FAC) alleging eleven causes of action, listed respectively:
employment discrimination in violation of FEHA based on physical disability;
employment discrimination under the FEHA based on race; harassment under the FEHA
based on physical disability; harassment under the FEHA based on race; failure to
prevent discrimination and harassment in violation of the FEHA; retaliation in violation
of the FEHA; wrongful termination in violation of the public policies against racial and
disability protections embodied in the FEHA and the state and federal constitutions;
intentional infliction of emotional distress; failure to pay overtime wages in violation of
the Labor Code; failure to provide rest periods in violation of the Labor Code and state
labor regulations; and wrongful termination in violation of the public policies set forth in
the Labor Code allowing employees to discuss workplace conditions. Le’s causes of
action were based on the alleged facts summarized above.
Discovery
       In December 2012, Blue Tax served Le with a notice of deposition, including a
demand for production of documents. Pursuant to the notice, Blue Tax’s lawyer deposed
Le on January 10, 2013. At that time, Le produced approximately 40 pages of
documents, and Blue Tax’s counsel questioned her on a number of the documents.6 In
addition to the documents produced, Le provide Blue Tax with a written response to the
company’s request for documents, which included a series of objections, including
privilege, and representations that no relevant documents existed as to certain requests.

6
       For example, Blue Tax’s counsel questioned Le about an “Employee Warning
Notice” dated “July 20, 2010” [sic] which she produced. Further, counsel questioned Le
about another “Employee Warning Notice” dated July 21, 2011, which she produced.
Counsel also questioned Le about the Guaracha email, which became a prominent part of
her lawsuit.


                                              4
       On January 24, 2013, about two weeks after Le’s deposition, Blue Tax served her
with Judicial Council approved “Form Interrogatories –– Employment Law;” along with
Requests for Admissions (RFAs), and a Request for Production of Documents. In late
February 2013, Blue Tax granted a request from Le’s counsel for a two-week extension
to respond to this first round of written discovery.
       On March 14, 2013, Le served responses to Blue Tax’s request for production of
documents. In her responses, Le objected generally to producing any document that was
“already in the possession of [Blue Tax] on the grounds that any such production [was]
overly broad and unduly burdensome.” For example, Le objected that certain of the
requests for production of documents were “substantially similar” to the company’s
requests to produce documents of the same description at her deposition, that she had
complied with the previous requests at her deposition, and that “further production of
such documents [was] burdensome and oppressive.” As to the other requests, Le stated
that she had no responsive documents in her possession.
       On March 14, 2013, Le served responses to Blue Tax’s form interrogatories. Le’s
responses included extensive boilerplate objections and answers. By way of example,
Blue Tax propounded form interrogatory 202.1, which asks:
              “Do you contend that any ADVERSE EMPLOYMENT ACTIONS
       against you were discriminatory? If so:
              (a) identify each ADVERSE EMPLOYMENT ACTION that
       involved unlawful discrimination;
              (b) identify each characteristic (for example, gender, race, age, etc.)
       on which you base your claim or claims of discrimination;
              (c) state all facts upon which you base each claim of discrimination;
              (d) state the name, ADDRESS, and telephone number of
       each PERSON with knowledge of those facts; and (e) identify all
       DOCUMENTS evidencing those facts.

       In response, Le’s answer was:
              “In April, 2012, Plaintiff informed Defendant LEWIS that she was
       concerned about the Defendant BLUE TAX, INC. complying with the IRS
       rules and regulation that require a tax preparer’s signature on a tax return.


                                              5
In fact, Defendant BLUE TAX, INC. would face a fine for each unsigned
tax return that was filed. Ms. Hammond responded that her CPA filed her
personal taxes electronically and she never signs her tax return. However,
the IRS rules and regulations require that all tax preparers need to affix
their PTIN (identification) number on the tax return to inform the IRS that
they were the ones that had prepared the return. One of Plaintiff’s co-
workers, Ms. Gandhi (‘Gandhi’), did not have a PTIN number and therefore
never ‘signed’ the tax returns that she prepared. Again, this is considered a
violation by the IRS and is punishable by a fine per the IRS code.
       “On April 19, 2012, Plaintiff was given a written employee warning
notice for allegedly creating a hostile work environment for another
employee, Ms. Gandhi, and for not following management’s directions.
Both charges were baseless. Plaintiff unceasingly tried to follow her
manager’s directions. When Plaintiff asked for an example of the
accusations against her, she was told that the reason she was being written
up was because she had not followed the directions of management.
HAMMOND stated that Plaintiff ‘took too much ownership of the tax
returns’ assigned to her. HAMMOND emphasized that Plaintiff was ‘not to
worry’ about client’s issues and/or deadlines and she was spending too
much time answering clients’ questions and concerns. In addition, Plaintiff
asked for an example of the Hostile Work Environment complaint as she
was surprised about this as she thought she had a good working relationship
with Ms. Ghandi. At that point, HAMMOND called Plaintiff into the
office. HAMMOND told Plaintiff that Ms. Ghandi had stated that Plaintiff
was ‘All over her back and made her feel uncomfortable’ but would not be
more specific.
       “Plaintiff felt frustrated and confused, as she had never before been
reprimanded for going above and beyond what was asked of her. In fact,
she was in shock and near tears about the false accusations. Plaintiff felt

                                       6
that she was outnumbered and had no choice but to sign the disciplinary
write up even though it inaccurately and unfairly misstated the facts in the
matter.
       “On July 18, 2011, Plaintiff finished the 2007 tax return of a client.
Ms. Ghandi emailed Defendants LEWIS and HAMMOND to state that
Plaintiff may have incorrectly prepared the tax return. Defendant LEWIS,
Defendant GUARACHA and HAMMOND called Plaintiff into a meeting
and condescendingly asked her whether she knows how to do tax returns.
Defendant LEWIS asked, ‘Are you comfortable doing tax schedule A and
C?’ In the meeting, Ms. Ghandi was brought in and Plaintiff explained to
her how she arrived at the 2007 tax return computation on the form which
Ms. Ghandi had reported as being incorrectly prepared. Ms. Ghandi
listened but did not make any comments. Later on that day, Ms Ghandi
realized that she was mistaken about the proper way to prepare the tax
returns and she adjusted the client’s tax returns according to the directions
of Plaintiff. When Ms. Ghandi corrected the tax return it resulted in the
client going from being owed a huge refund to owing the IRS tens of
thousands dollars. The client had to be informed that she was not going to
be getting a refund after all and instead would be owing money. No one
ever apologized to Plaintiff for wrongly accusing her of incorrectly
preparing the tax return.
       “On July 19, 2011, Plaintiff emailed Defendant GUARACHA to
request four hours off on July 20, 2011, because she was required to have
her fingerprints taken for her U.S. citizenship application. Defendant
GUARACHA responded by stating that managers do not accept last minute
requests and so she could not have the time off. In fact, Defendant BLUE
TAX, INC. had no such policy or rule. In fact, Defendant GUARACHA
allowed another employee off with one day notice just the week before. In
contrast, Plaintiff was only requesting a half day off to comply with her

                                      7
citizenship process. In Plaintiff’s case, Defendant GUARACHA refused to
allow her the time off. After intervention from Plaintiff’s husband, Ken Ly
(‘Mr. Ly’), who also worked at Defendant BLUE TAX, Defendant
GUARACHA stated that Plaintiff had to come in around 6:00 or 6:30 am or
‘as soon as she can thereafter’ to work the required hours.
       “On July 20, 2011, Plaintiff came into work at 6:50 am, which was
as soon ‘thereafter’ as Defendant GUARACHA had stated the night before.
Nonetheless, Defendant GUARACHA called Plaintiff into his office and
attempted to give her a disciplinary write-up for being late even though her
normal scheduled time to come in was at 8:00 am. Plaintiff’s fingerprint
appointment was at 2:00 pm so she was planning to work the required six
hours from 7:00 am – 1:00 pm, instead of 6:00 am to 12:00 pm (noon).
Despite agreeing otherwise, Defendant GUARACHA wrote Plaintiff up for
being late. Defendant GUARACHA never communicated to Plaintiff a
specific time for her work, only that she had to work six hours before
leaving for her appointment. Defendant GUARACHA said he was going to
write Plaintiff up for being late but that ‘it meant nothing’ for her
employment record.
       “Later that day, Plaintiff found out that Defendant GUARACHA
sent an email to the other Defendant BLUE TAX, INC. managers,
HAMMOND and Defendant LEWIS, attaching a picture of an ugly, cross-
eyed dog, making fun of Plaintiff’s eye disability and broken English.
Instead of denouncing Defendant GUARACHA’s racially derogatory email
depicting Plaintiff as a dog, Hammond emailed him back saying ‘I hate
having to listen to Annie talk. All I see now is the dog picture.’ It is
significant that HAMMOND implies that from now on when she hears
Plaintiff talk with ‘broken English’ she will be reminded of the dog picture
that Defendant GUARACHA emailed out. Defendant LEWIS’s response
to the derogatory email, as the Vice President of Defendant BLUE TAX,

                                       8
INC., was to reply to the email with ‘Lol’ meaning ‘Laughing Out Loud.’
No one in an executive position at Defendant BLUE TAX, INC.
discouraged Defendant GUARACHA’s racist offensive email. In fact,
nothing was done by Defendant BLUE TAX, INC.’s management to
address the racially derogatory email.
       “The day after the offensive email surfaced, Defendant
GUARACHA went through Plaintiff’s personal email folder and found an
email that she wrote to her husband venting her frustration about Defendant
GUARACHA’s unfair actions towards her for not allowing her time off
even though he allowed other employees off work. Defendant LEWIS
called Plaintiff into his office with HAMMOND and Defendant
GUARACHA to give her a two day suspension without pay and to hand her
a write-up for a ‘misuse of company email.’ In addition, the write-up stated
that during one of Plaintiff’s lunch breaks she stated to co-workers, ‘this is
bullshit, things will never change here.’ However, whether or not that
statement was true, Plaintiff never made that statement.
       “During the meeting referred to in the preceding paragraph,
Defendant LEWIS threatened Plaintiff with losing her job. Plaintiff told
them she knew about the email making fun of her broken English and her
lazy eye. Defendant LEWIS did not deny it, instead; he bragged that, ‘We
are managers, we have the right to speak or say whatever we want!’
Plaintiff responded that she did not think that included making fun of
people. Defendant LEWIS again bragged that, ‘Yeah, that's why we have a
closed door.’ Plaintiff told them that since her desk was next to Defendant
GUARACHA and HAMMOND she could hear them say her name and
then laugh a lot. Defendant LEWIS again stated that it did not matter
‘because at the manager level they can do what they want.’ Plaintiff
informed Defendant LEWIS that she expected them to respect her as a
human being. Then Defendant LEWIS snapped at her that she could not

                                       9
      even compose a proper sentence. Plaintiff told them she knew they were
      making fun of her ‘cross-eyes’ and English. Then they all became quiet.
      Defendant LEWIS then threatened her stating, ‘You are lucky that I did not
      fire you because I still think you are a good employee.’ He then stated,
      ‘you look so upset right now, do you want to work here or not?’ Plaintiff
      did not know what to say but was afraid she was about to be fired, so she
      answered ‘yes.’ Defendant LEWIS told her she had to stop questioning
      management, IRS regulations, and advised her that they would talk on
      Monday after she returned from her suspension. Defendant LEWIS did not
      indicate to Plaintiff that they were going to terminate her.
             “After the ‘suspension,’ Plaintiff returned to work on July 25, 2011.
      When she arrived at work, Defendant LEWIS handed Plaintiff her final
      paycheck and acknowledged that Plaintiff may have received an email that
      she should not have received in reference to the dog photograph.
      Regardless of the racially derogatory email Plaintiff was sent, Defendant
      LEWIS said the Defendant BLUE TAX, INC. was going to have to
      terminate her. Defendant LEWIS stated that the Defendant BLUE TAX,
      INC. would give her a good recommendation letter. Plaintiff was
      devastated as she felt that she was being terminated because of her race and
      her disability.”
      On March 14, 2013, Le served responses to Blue Tax’s RFAs. As with her
responses to the other discovery, Le’s responses included objections, as well as some
admissions and denials.7
Blue Tax’s Discovery Motion and the Order on the Motion
      On April 8, 2013, Blue Tax’s counsel wrote to Le’s attorney to meet and confer
regarding her responses to the RFAs, form interrogatories, and requests for production of
documents. The letter requested verifications; demanded that all objections be removed

7
      The trial court eventually ruled that Le’s responses to Blue Tax’s RFAs largely
complied with the discovery statutes.

                                            10
from all three responses, and, in some cases, that additional responses be provided. On
April 15, 2013, Le’s counsel forwarded verifications signed by Le, and responded to the
other demands with the following advisement:
               “Plaintiff is not changing her answers to any of her Responses to the
       Request for Admissions. She has answered each Request for Admission to
       the best of her knowledge and understanding of the question as it was
       phrased. Plaintiff will not waive her valid objections to questions that
       violate her right to privacy or information protected by the attorney-client
       privilege.
               “Plaintiff will not waive her valid objections to her answers to the
       form interrogatories. The judge will make a ruling about the validity of the
       objections at trial. . . .
               “Plaintiff has not withheld any documents, we merely pointed out in
       the responses to each production of documents that Defendants are in
       custody of all the documents that Plaintiff has. As you are aware, most
       documents originated from the Defendants.”


       On April 19, 2013, Blue Tax’s counsel sent a second letter again asserting that
objections could be determined at trial, and demanded answers without objections. The
letter set a deadline for April 22, 2013, and stated that Blue Tax would file a motion to
compel further responses on Apri1 23, 2013, unless Le fully complied with Blue Tax’s
demands. On April 22, 2013, Le’s counsel replied by a fax and email letter, indicating
that Blue Tax appeared to be seeking to compel Le to waive attorney-client privilege, and
to compel her to provide different answers than those she had provided in her responses.
       On May 16, 2013, at which time trial was set for August 19, 2013, Blue Tax filed
a joint motion to compel Le to provide further responses to form interrogatories, requests
for production of documents, and RFAs, supported by a Separate Statement of disputed
discovery. The motion was set for hearing on September 20, 2013, a month after the
calendared trial date.

                                             11
       On June 28, 2013, more than a month after filing its discovery motion, Blue Tax
filed an ex parte application for an order shortening time for the hearing on the motion.
On July 2, 2013, the trial court issued a minute order denying Blue Tax’s motion on
several grounds, including the “discovery motion cut-off.”
       On July 16, 2013, it was Le’s turn to file an ex parte application for an order
shortening time. Le requested the order to file a motion to compel Blue Tax to produce
documents at the then-pending deposition of its “person most qualified” (PMQ) to
testify,8 and to file a motion to amend her complaint to add a cause of action under Labor
Code section 923 (violation of an employee’s right to engage in mutual aid activities).
Further, Le requested that the trial date be continued for a minimum of sixty days. Blue
Tax filed written opposition to the application. The court set the matter for a full hearing,
and directed the parties to submit additional briefing.
       On July 26, 2013, the trial court granted “in full” Le’s application for an order
shortening time to file a motion to amend her complaint, and to file a motion compel
Blue Tax to produce documents at the deposition of its PMQ. The court’s order indicated
that the trial date was reset for October 28, 2013. On August 19, 2013, Le filed a motion
for leave to amend her complaint, including a copy of her proposed first amended
complaint (FAC).
       With the original August 2013 trial date continued, the parties apparently decided
it was appropriate to re-approach discovery, including Blue Tax’s May 2013 discovery
motion (ante) to compel Le to provide further responses to form interrogatories, requests
for production of documents, and RFAs, which, as noted above, had been scheduled to be
heard on September 20, 2013. On September 10, 2013, Le filed a written opposition to
Blue Tax’s motion to compel further discovery responses.




8
       According to papers in the record, Le first noticed a deposition of Blue Tax’s
PMQ in June 2013. Then, following a series of exchanges to set a date for the deposition,
Le’s counsel confirmed a date in mid-July. In early July 2013, Blue Tax served Le with
objections to the production of documents.

                                             12
        On September 20, 2013, the trial court issued an extensive written tentative ruling
indicating that was granting Le’s motion to amend, and granting Blue Tax’s discovery
motion in large part. On the same day, the court issued a minute order advising the
parties that argument on the motions was continued.
        On October 2, 2013, the parties argued Le’s motion for leave to file her FAC, and
Blue Tax’s discovery motion to compel Le to provide further responses to interrogatories,
requests for production of documents, and RFAs. At that time, the court kept intact its
tentative ruling of September 20, 2013, thereby granting Le’s motion to file her FAC, and
granting Blue Tax’s discovery motion in large part. Specifically, as to Blue Tax’s
discovery, the court generally rejected Blue Tax’s challenge to Le’s objections (privilege,
burdensome, etc.) on the ground that Blue Tax had failed to challenge Le’s objections
within 45 days after she had served her objections. Further, the court denied Blue Tax’s
motion to compel Le to provide further responses to RFAs as follows: “Defendant’s
motion to compel Plaintiff to provide further responses to [RFAs] (Set One) Nos. 22, 23,
24, 25, 29, and 32 is denied to the extent Defendant challenges the fact-specific responses
(i.e., whether the answers are evasive or incomplete). Plaintiff’s responses comply with
C.C.P. §2033.220 . . . .”
        As most relevant, the trial court granted Blue Tax’s motion compel further
responses to form interrogatories numbers 200.2, 200.3, 200.4, 201.1, 202.2, 203.1,
204.1, 205.1, 207.2, 210.1, 210.3, 212.4, 212.5, 213.1, 213.2, 214.1, and 217.1. In
addition, the court granted Blue Tax’s motion to compel Le to provide further responses
to the company’s requests for production of documents numbers 1, 2, and 6, directing Le
to amend her responses so that they conformed to the statutory language. The court did
not explicitly order Le to produce any additional documents.9 The court denied both
parties’ cross-requests for sanctions. The court also continued the trial date to March 17,
2014.


9
     As noted above, Le’s initial responses indicated that she had produced all of the
documents in her possession.

                                             13
       On November 12, 2013, at approximately 5:00 p.m., Le’s counsel faxed a 31-page
set of amended responses (without Le’s verification) to Blue Tax’s form interrogatories
to the company’s lawyer, along with amended responses (again without Le’s verification)
to the company’s requests for production of documents. At some point during the day on
November 13, 2013, Le signed verifications for the amended response.
Blue Tax’s Further Discovery Motions and the Order Imposing Terminating Sanctions
       On November 13, 2013, Blue Tax filed an ex parte application to “correct” the
trial court’s discovery order issued on October 2, 2013. Specifically, Blue Tax sought an
order with a specified deadline for Le to provide the further responses that the court had
ordered her to provide. The court granted Blue Tax’s application, and signed a formal
written order setting a response deadline of November 27, 2013.
       On December 10, 2013, Blue Tax filed an ex parte application to specially set a
hearing on a motion for issue, evidentiary and or monetary sanctions against Le for her
failure to comply with the trial court’s discovery orders. The court set the motion for
hearing on January 22, 2014.
       On January 8, 2014, Le filed her opposition to Blue Tax’s motion for discovery
sanctions. Le’s counsel submitted a declaration in support of the opposition in which he
explained that Le had served a privilege log on Blue Tax, and that it had not challenged
any of Le’s assertions of privilege. Further, Le’s counsel advised the court that Le had
served 31 pages of amended responses to Blue Tax’s form interrogatories on November
12, 2013, along with amended responses to the request for production of documents.
Verifications to both of those responses were served on November 13, 2013. The
opposition included a “red line” version of Le’s amended responses, showing in red (on
the original) the text which was added and deleted from the original responses to the
amended ones.
       In reply to Le’s opposition, Blue Tax argued that Le’s amended responses served
on November 12, 2013, the day before Blue Tax had found it necessary to seek an order
for a specified deadline date for such amended responses, had been tantamount to “no
responses at all” because they had not been verified. Blue Tax argued that its lawyers

                                            14
had been regularly required to return to court, incurring costs in the process, to get Le and
her counsel to satisfy their discovery obligations.
       On January 22, 2014, the trial court issued a tentative order granting Blue Tax’s
motion for discovery sanctions in the form of monetary sanctions only, and denying the
company’s motion for terminating sanctions without prejudice.
       On January 23, 2014, Blue Tax filed a supplemental brief in support of its motion
for terminating sanctions. On the same day, Le’s counsel lodged a proposed order
denying terminating sanctions, along with a memorandum in support of the order, which
indicated that Le had complied with the court’s order for supplemental responses by the
materials she served on Blue Tax on November 12-13, 2014.
       On January 29, 2014, the parties again argued the issue of terminating sanctions to
the trial court, and the court took the matter under submission. During the course of
argument, Le’s counsel noted that the earlier orders did not order production of any
documents. Moreover, that Le had produced all of the documents that she had in her
possession over a year earlier in her deposition. As counsel stated: “The documents have
been produced except those for which a privilege was asserted and a privilege log was
provided and except for those for which a valid objection was sustained by the court and
for which we said we would not produce documents.”
       The argument then focused on two main areas of discovery – Le’s physical
condition (a matter pertaining to her claim of disability discrimination), and the money
that she had earned after Blue Tax terminated her (a matter pertaining to her damages).
Here, Le’s counsel argued to the court that the lack of medical records reflected that
Strabismus is a physical condition and not a “sickness or disease to be treated.” It was
like having “blond hair.” As counsel stated: “There isn’t something more that we can
produce to them.” Counsel argued that, with respect to documents related to Le’s
finances, Blue Tax was asking for documents to which the court had already sustained
objections, such as Le’s private financial documents, as reflected in the court’s October 2,
2013 order. Ultimately, Le’s counsel summarized the situation as follows: “There isn’t
anything here that’s being hidden. It’s a very compact case. . . . You’ll see in the

                                             15
document production the offensive picture of a dog they were circulating [about] my
client . . . . You’ll see it when you look. [¶] It doesn’t take much more than that for a
harassment [claim] . . . . This [motion to compel further discovery responses] is sort of a
disguised motion for summary judgment [arguing] we haven’t [got any] witnesses or
documents.”
       On March 17, 2014, about a month and a half after the hearing on the issue of
terminating sanctions, the trial court issued a minute order taking the trial date and final
status conference off calendar, and setting a “non-appearance case review re: proposed
orders” for April 18, 2014. The matter was continued several times, until finally being
resolved on May 29, 2014.
       On May 29, 2014, the trial court issued a minute order directing Le to file a
response to Blue Tax’s proposed order for terminating sanctions, and directing Blue Tax
to file a response to Le’s proposed for denying terminating sanctions. The supplemental
papers were due by July 15, 2014, and the non-appearance case review was reset again
for July 25, 2014, “for the Court to make a ruling on the Proposed Orders.” On July 15,
2014, Blue Tax and Le each filed objections to the other party’s proposed order.
       On August 14, 2014, the trial court signed and entered a 23-page typed order
(prepared by Blue Tax’s counsel) granting Blue Tax’s motion for discovery abuse
terminating sanctions. In a handwritten addendum to the order, the court handwrote the
following statement: “In deference to the many decisions of our Honorable Justices this
decision was not made lightly. Plaintiff was given more than enough time and
opportunity to resolve the issues.”
       Le filed a timely notice of appeal.
                                       DISCUSSION
I.     The Trial Court Exercised Its Discretion
       As noted above, the trial court signed a 23-page typed order that was prepared by
Blue Tax’s attorney. On this order, below the signature line, the court appended a short,
handwritten note that reads in full: “In deference to the many decisions of our Honorable
Justices this decision was not made lightly. Plaintiff was given more than enough time

                                             16
and opportunity to resolve the issues.” Le argues this handwritten note “shows that the
[trial court] simply ‘punted’ this case to the Court of Appeal, implicitly acknowledging
that it would be reviewed and possibly reversed.”
       We summarily reject Le’s argument. The trial court’s handwritten note does not
demonstrate that it left its decision to any other court. Rather, we interpret the court’s
note to show its recognition that a number of published appellate cases have regularly
cautioned trial courts not to impose terminating sanctions without weighted reasons.
The note shows that the trial court understood the gravity of the decision that it had been
called to make; it does not show the court shirked its judicial responsibilities and simply
wanted to move the issues along to a reviewing court. Whether or not the record supports
the ruling issued by the trial court is a different matter which we take up next.
II.    The Trial Court Erred in Issuing Terminating Sanctions
       Le argues that the trial court erred in issuing its order imposing terminating
sanctions for discovery abuse because the order is not supported by substantial evidence.
Alternatively, Le argues the trial court abused its discretion by imposing terminating
sanctions in the first instance. We agree the court should not have dismissed Le’s case.
       Governing Principles
       “California discovery law authorizes a range of penalties for conduct amounting to
‘misuse of the discovery process,’” including terminating sanctions. (Doppes v. Bentley
Motors, Inc. (2009) 174 Cal.App.4th 967, 991, quoting Code Civ. Proc., § 2023.030.)
Misuses of the discovery process include the following: “(d) Failing to respond or to
submit to an authorized method of discovery. [¶] (e) Making, without substantial
justification, an unmeritorious objection to discovery. [¶] (f) Making an evasive response
to discovery. [¶] (g) Disobeying a court order to provide discovery.” (Code Civ. Proc.,
§ 2023.010.) Terminating sanctions may take the form of “[a]n order dismissing the
action, or any part of the action . . . .” (Code. Civ. Proc., § 2023.030, subd. (d)(3).)




                                              17
       “‘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 trial court may
order a terminating sanctions for discovery abuse “after considering the totality of the
circumstances: [the] conduct of the party to determine if the actions were willful; the
detriment to the propounding party; and the number of formal and informal attempts to
obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)
Generally, “[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 v. Tenet Healthsystem
(2005) 128 Cal.App.4th 262, 279-280.) Under this standard, trial courts have properly
imposed terminating sanctions when parties have willfully disobeyed one or more
discovery orders. (Lang v. Hochman, supra, 77 Cal.App.4th at pp. 1244-1246
[discussing cases].)
       When the trial court’s exercise of its discretion relies on factual determinations,
we examine the record for substantial evidence to support them. (Waicis v. Superior
Court (1990) 226 Cal.App.3d 283, 287; see Miranda v. 21st Century Ins. Co. (2004) 117
Cal.App.4th 913, 929.) In this regard, “the power of an appellate court begins and ends
with the determination as to whether, on the entire record, there is substantial evidence,
contradicted or uncontradicted, which will support the determination [of the trier of
fact].” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.)
       First, we find there was no substantial evidence to support some of the significant
factual determinations upon which the trial court relied in imposing terminating
sanctions. The trial court’s very extensive written order, which, as noted above, was
prepared by Blue Tax’s lawyers, states that Le “persistently . . . refused to engage
meaningfully in discovery and willfully . . . refused to comply with [the trial] court’s
orders compelling her full and complete compliance therewith.” In the latter vein, the
order for terminating sanctions repeatedly refers to a prior court order dated October 2,

                                             18
2013, and a prior court order dated November 13, 2013. We agree with Le that the trial
court seems to have incorrectly assumed that it had issued multiple prior discovery orders
before it decided to issue its order imposing terminating sanctions. We see only one
discovery order issued prior to the order imposing terminating sanctions, namely, the
court’s order dated November 13, 2013, which formalized its tentative ruling of October
2, 2013. While we do not countenance a failure to obey a discovery order, the record
here fails to support the trial court’s finding that Le violated multiple discovery orders,
justifying imposition of the ultimate sanction.
       The trial court’s order imposing terminating sanctions also states that Le
“produced no documents whatsoever” in her March 2013 responses to the requests for
production of documents propounded by Blue Tax in January 2013, or at any time for
that matter. This finding is supported by the record in a technical sense, but Le’s
discovery failure must be viewed in light of her repeatedly asserted position that she had
produced all of the documents that she had in her possession at her deposition. While Le
erred in flatly refusing to produce documents on the ground that Blue Tax already had in
its hands the documents which were the subject of its request for production of
documents (cf. Singer v. Superior Court (1960) 54 Cal.2d 318, 324 [“[N]o rule or
authority is cited which authorizes refusal to answer an interrogatory simply upon the
ground that the answer is known to the party seeking the information.”]), the issue in
examining the order imposing terminating sanctions is not merely Le’s failure to comply
with her discovery. Blue Tax was entitled to pursue a discovery plan as it saw fit, and Le
was not entitled to refuse to cooperate on the grounds she thought the discovery was
unnecessary. Her objection that producing some 40 or so documents was “unduly
burdensome” smacks – in the words of the trial court’s terminating order – of
“gamesmanship” that is not acceptable. Compliance, however, did not require threat of
dismissal.
       Beyond the matter of compelling Le to produce documents pursuant to a request
for production of documents, we note a further issue is presented by Blue Tax’s motion
for the imposition of terminating sanctions. In the event Le does not actually have any

                                             19
documents to produce that are responsive to a particular aspect of Blue Tax’s request for
production of documents, then so be it, and a proper discovery response is that she has no
such documents. She must merely give an explanation that no such documents ever
existed, or to explain why she does not have such documents, for example, a document
was always in the possession of Blue Tax. (Union Bank v. Superior Court (1995) 31
Cal.App.4th 573, 580, fn. 3 [a party has a duty to respond to discovery requests “as
completely and straight forwardly as possible given the information available to them.”])
If Le says that no more documents exist, then there is no more discovery to be had, and
no dereliction of her discovery obligations in not producing such documents. Of course,
if she later tries to introduce documents, for example, in opposition to a motion for
summary judgment or at trial, then there would be grounds for the trial court to refuse to
allow her to use such documents. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 855.) But a proponent of discovery does not show a party’s failure to comply with
discovery obligations merely by pointing to the party’s failure to provide discovery,
particularly in light of an assertion that there is nothing to provide. Le’s lack of
documents to produce may well show that she cannot prevail on many, if not most or all
of her causes of action, but this is a matter for procedures beyond those available under
the discovery statutes, for example, a motion for summary judgment or summary
adjudication of issues, or motion in limine or motion for nonsuit at trial. The trial court
has within its authority the power to hold Le firmly restricted to her limited discovery
responses, without imposing a terminating sanctions under the discovery statutes.
       The trial court’s order imposing terminating sanctions also states that, with respect
to the “majority” of the discovery sought by Blue Tax on the material factual allegations
of Le’s claims, that is, with respect to the company’s contention discovery, she “refused”
to provide “full and complete good faith factual responses.” Le’s discovery responses are
subject to more interpretation than is embodied in the court’s finding here. Le provided
responses, and provided amended responses as reflected in her “red line” copy of
discovery responses. Again, we note that, to the extent Le has disclosed all of the facts
that she has, then she has no further obligation with respect to complying with discovery.

                                              20
Of course, as we stated above, whether Le’s responses show facts that would support any
of her claims against Blue Tax is a different issue. If Le later tries to introduce evidence
of facts beyond her discovery answers, she will be subject to the consequences we have
outlined.
       We could go on, but think we have made our point. Where we do agree with the
trial court’s order is in its finding that Le “continues to refuse to set forth material facts or
documents supporting her contention that she has suffered any financial loss” as a result
of Blue Tax’s decision to fire her, and or her contention that she “will suffer any [such
loss] in the future” as a result of being fired. Blue Tax’s discovery sought information
from Le reflecting the income that she received from operating a business known as
ATTAX Financial after she was fired. Le consistently asserted that such information was
personal and did not need to be disclosed. Blue Tax plainly is correct that information
about Le’s income was discoverable as it could have relevance to mitigation of her
claimed damages. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th
1026.) Blue Tax’s discovery requests may have been overly broad, and may have
invaded privacy interests of third-parties, e.g., in seeking names of any payments by
ATTAX’s clients, but Blue Tax was correct that Le could not flatly refuse to provide
facts concerning her income as it may be relevant to her claim for loss from being fired
by the company. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145; accord,
Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317.) If, after
being terminated by Blue Tax, Le was able to dedicate more time to ATTAX, and to
improve her financial condition, then there was no loss caused by anything Blue Tax did.
In truth, we see a lot of unproductive discovery posturing by both sides in this case.
       We also find unsupported the trial court’s statement that Le “spent the better part
of 12 months avoiding and evading its obligations to fully and completely respond.”
Yes, the better part of a year passed in dealing with Blue Tax’s first round of propounded
discovery, but most of that time cannot be attributed solely to Le’s conduct. Blue Tax
propounded the discovery in late January 2013, and Le responded in March 2013. Blue
Tax filed a motion to compel further discovery responses in May 2013, but the trial court

                                               21
did not address the motion until it issued a tentative ruling in September 2013. The
tentative ruling was not formally adopted as an order until October 2013. Le filed
supplemental responses in November 2013. Blue Tax filed a motion for terminating
sanctions in December 2013. The trial court heard arguments on the motion for
terminating sanctions in January 2014 (the one year anniversary of the discovery).
The trial court entered its order for terminating sanctions in August 2014. The record
does not support the trial court’s conclusion that the lengthy delay from the beginning to
the end of the discovery issues in this case were caused by Le or her counsel. We need
not dwell on the myriad causes for the delays in this case, but the record does not support
the conclusion that the liability for those delays must fall solely at Le’s feet.
       The trial court’s order imposing terminating sanctions against Le also states that
Blue Tax “suffered extreme prejudice” from Le’s failure to provide discovery responses
to the company. This statement, too, is not supported by the record. Blue Tax had the
opportunity and time to prepare its defense to Le’s claims, particularly given the
relatively limited facts and witnesses identified in Le’s discovery responses. To the
extent Le’s discovery responses show that she has no facts in support of certain of her
claims, Blue Tax has not shown us how this is prejudicial to its defense.
       Second, we find the trial court abused its discretion in determining that
terminating sanctions, rather than some other lesser sanction (for example a monetary
sanction), would have persuaded Le to comply with the discovery orders. Discovery
sanctions are not intended to serve the primary purpose of damaging a party’s case
because he or she is guilty of a discovery abuse, but to promote the end goal of assuring
that a party who propounds discovery will receive proper responses, and to curb the type
of discovery abuse which occurred. (See generally Laguna Auto Body v. Farmers Ins.
Exchange (1991) 231 Cal.App.3d 481, 488; Doppes, supra, 174 Cal.App.4th at p. 992;
Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) We have affirmed
terminating sanctions upon finding that the ultimate sanction was appropriate in the first
instance, without a violation of a prior court order, due to the egregious nature of the
discovery violation In Williams v. Russ (2008) 167 Cal.App.4th 1215, the plaintiff’s

                                              22
willful conduct caused the destruction of evidence which may have been useful to the
defendant’s case, thus making the evidence unavailable to be produced in discovery. In
the current case, however, we are not persuaded that Le’s conduct is of a similar nature
justifying a terminating sanctions.
III.   Costs
       After the trial court entered its judgment of dismissal (see footnote 1, ante), Blue
Tax submitted a cost bill. Le filed a motion to tax costs. On January 21, 2015, the court
granted Le’s motion in part, striking $1,488.15 in costs claimed by Blue Tax. In the end,
the court entered an order awarding $5,439.85 in costs to Blue Tax.
       On appeal, Le argues that the trial court should not have awarded any costs to Blue
Tax in the absence of a finding that she brought or continued litigating her FEHA action
without an objective basis for believing it had potential merit. Le’s argument is based on
the Supreme Court’s recent decision in Williams v. Chino Valley Independent Fire Dist.
(2015) 61 Cal.4th 97 (Williams). In Williams, the Supreme Court ruled that Government
Code section 12965 precludes an award of costs in a FEHA case in favor of a prevailing
defendant unless the plaintiff brought or continued litigating his or her action without an
objective basis for believing it had potential merit. The Supreme Court decided Williams
while Le’s current appeal was pending. This means, of course, that Williams did not play
a part in the trial court’s decision on costs.
       Because we have determined that the judgment of dismissal based on terminating
sanctions for discovery abuse must be reversed, we find the accompanying award of costs
must be reversed as well, regardless of whether or not Williams is applicable here. In the
absence of a final determination of Le’s case, the issue of costs is premature. We reject
as moot Blue Tax’s argument that Le should not be allowed to raise her challenge to the
award of costs on appeal because she did not raise Government Code section 12965 as a
ground for disallowing costs in the trial court.




                                                 23
                                  DISPOSITION
     The judgment of dismissal is reversed. Appellant is awarded costs on appeal.




                                              BIGELOW, P.J.
We concur:


                  RUBIN, J.




                  GRIMES, J.




                                         24
