Filed 9/3/14 Lancaster v. Law Officers of Choe CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR




WALTER LANCASTER,                                                       B242069

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                        Super. Ct. No. BC448878)
         v.

LAW OFFICES OF GENE W. CHOE,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert O’Brien, Judge. Affirmed.
         Walter Lancaster, in propria persona, for Plaintiff and Appellant.
         No appearance for Defendant and Respondent.
       Plaintiff Walter Lancaster appeals from a judgment dismissing his legal
malpractice action for failure to comply with an order to produce documents and to
designate any witnesses for trial or provide the court with complete transcripts of the
underlying trial. We find no abuse of discretion, and thus we affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND


       Plaintiff, in propria persona, filed this legal malpractice action against his former
attorney, the Law Offices of Gene W. Choe, on November 4, 2010.1 The operative first
amended complaint, filed May 13, 2011, alleges that defendant’s representation of
plaintiff in a police brutality case against the City of Inglewood fell below the standard of
care in that defendant “failed to follow any leads or pursue any tangible evidence that
would assist in this case,” was “ill prepar[ed]” for trial, “did not enter or request the video
from the police showing the incident on tape,” “failed to enter the Plaintiff’s clothing
worn that night showing the burn marks from the taser,” and “failed to reenact the events
so that the Court could get an idea of the circumstances and the wrongful acts.”
       On November 28, 2011, defendant made a motion to compel plaintiff to provide
further answers to interrogatories and for production of documents. The trial court
granted the motion on March 2, 2012, ordering plaintiff to provide verified responses to
defendant’s discovery and produce responsive documents by March 12, 2012.
       Trial was scheduled for March 26, 2012. On March 21, 2012, plaintiff filed an
exhibit list, but he apparently never filed a witness list. He posted jury fees on March 23,
2012. Defendant filed a motion in limine for issue, evidence, or terminating sanctions for
plaintiff’s failure to serve verified responses to the document requests and to produce
documents in compliance with the court’s order, to be heard on the first day of trial.
       On March 26, the court held the final status conference. The minute order of the
hearing says: “Plaintiff has not listed any witnesses and indicates he needs more time to

1
      Attorney Craig Cawlfield was also named in the first amended complaint, but was
dismissed from the action on December 6, 2011.

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hire a ‘tazer’ expert and a ‘legal malpractice’ expert. Plaintiff has filed an exhibit list.
[¶] Plaintiff’s request to continue trial is GRANTED. [¶] Jury trial is continued to
04/25/12 at 9:30 am in Department 38.”
       Trial again was continued to April 30, 2012, and the parties appeared for trial on
that date. The trial court noted that defendant’s motion for terminating sanctions was
pending and asked whether plaintiff had complied with the court’s March 2, 2012 order
compelling further discovery responses. Plaintiff told the court that he had “informally”
produced documents to defendant’s attorney, but he could not recall when he had done
so. Defense counsel indicated that plaintiff had served supplemental interrogatory
responses but had not complied with the document production requests.
       The court also noted that plaintiff had not provided a witness list or proposed jury
instructions. Plaintiff responded that he was waiving his right to a jury and intended to
submit his case based on the transcripts of the underlying trial. He said he had tried to
retain an expert witness to testify about the standard of care, but he had not been
successful. The trial court asked plaintiff for copies of the transcripts of the underlying
trial on which he intended to rely. Plaintiff provided transcripts from October 30 and
November 2, 2009, but could not provide transcripts from the remaining days of the
underlying trial (Oct. 27, Nov. 3 & Nov. 4, 2009).
       The court found plaintiff had failed to comply with the order to produce
documents. It further found, because plaintiff had not designated any witnesses and the
trial transcript on which plaintiff intended to rely was incomplete, plaintiff could not
demonstrate that defendant’s actions were below the standard of care. The court
therefore dismissed the case “for failure to provide the proper discovery, for having no
witness list and . . . because the transcripts are not complete.”
       Plaintiff appealed.2


2
        The case was temporarily stayed after defendant filed for bankruptcy. The
bankruptcy court issued an order closing the bankruptcy case on March 3, 2014, and the
trial court returned the case to active status on March 12, 2014. Defendant Choe has not
filed a respondent’s brief.

                                               3
                                       DISCUSSION


       Plaintiff’s appellate brief appears to assert that the judgment of dismissal should
be reversed because the trial court abused its discretion by dismissing the case for
(1) failure to produce documents, and (2) failure to file a witness list or provide the court
with complete transcripts of the underlying trial. For the reasons that follow, plaintiff’s
claims are without merit.


I.     The Trial Court Did Not Abuse Its Discretion by Dismissing the Case for
       Plaintiff’s Failure to Comply With a Discovery Order
       “‘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
rendering a judgment by default against [the offending] party.’ (Code. Civ. Proc.,
§ 2023.030, subd. (d)(4).)
       “‘“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 sanction 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


                                              4
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.)”
(Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390-391 (Los Defensores).)
       Plaintiff asserted in the trial court, and repeats on appeal, that he did not violate
the court’s discovery order because he produced the requested documents, albeit
“informally.” Plaintiff’s bare assertion in this regard was the only evidence of his
asserted production. Defendant’s attorney said no document production had been made,
and although plaintiff insisted he had produced the requested documents, he was unable
to tell the court the date on which he had done so or to provide the court with verified
discovery responses. On this record, the trial court was well within its discretion in
finding that plaintiff had not produced the requested documents. (E.g., Los Defensores,
supra, 223 Cal.App.4th at p. 391 [“On review for substantial evidence, we will affirm a
finding predicated on the trial court’s rejection of a witness’s testimony, ‘unless it
appears that there are no matters or circumstances [that] . . . impair the accuracy of the
testimony.’”].)
       In light of the court’s factual finding that plaintiff did not comply with the
March 2, 2012 discovery order, there is sufficient evidence that his failure to do so was


                                               5
willful. Although defendant filed a motion to compel production of documents in
November 2011, plaintiff had not produced the requested documents more than three
months later, in early March 2012. Plaintiff continued to avoid his discovery obligations
even after the court ordered further document production by March 12, 2012, and he still
had not produced the documents either by March 26, the day trial was scheduled to begin,
or April 25, the day to which the start of trial was continued at plaintiff’s request.
Plaintiff never offered an explanation as to why he had not complied with the court’s
discovery order, and certainly not one from which the court could conclude that his
failure to produce documents was anything but willful. In addition, there was obvious
detriment to the propounding party, who had not yet received the documents by the time
trial was set to begin. Under these circumstances, the imposition of terminating sanctions
manifestly was not an abuse of discretion. Indeed, short of continuing trial yet again, it
was the only sanction reasonably available to the trial court.


II.    The Trial Court Did Not Abuse Its Discretion by Dismissing the Case for
       Plaintiff’s Failure to Designate Trial Witnesses or Provide a Complete
       Transcript of the Underlying Trial
       Although plaintiff’s failure to comply with the court’s discovery is a sufficient
basis for affirming the judgment of dismissal, we also consider plaintiff’s alternative
contention that the trial court abused its discretion by dismissing the case for plaintiff’s
failure to designate trial witnesses or provide a complete transcript of the underlying trial.
For the reasons that follow, we disagree.
       To prevail on appeal, plaintiff must show that but for the trial court’s asserted
error, the result in his case would have been different. (Kim v. Konad USA Distribution,
Inc. (2014) 226 Cal.App.4th 1336, 1352.) To do so in this attorney malpractice case,
plaintiff must show not only that defendant’s representation of him in the underlying
case fell below the standard of care, but also that “but for the alleged malpractice, [trial]
of the underlying lawsuit would have resulted in a better outcome. [Citations.]” (Filbin
v. Fitzgerald (2012) 211 Cal.App.4th 154, 166.)


                                              6
       The issue on appeal, therefore, is not simply whether the trial court should have
allowed plaintiff to proceed on the partial transcript, but whether plaintiff has shown that
had he been allowed to do so, he could have prevailed at trial. Plaintiff has wholly failed
to make the necessary showing. He has neither provided us with the proffered transcripts
nor made any showing that the partial transcripts he provided the trial court would have
demonstrated that defendant’s representation of plaintiff in the underlying case fell below
the standard of care.3 In short, nothing in the record on appeal demonstrates that, as
alleged in the complaint, defendant “failed to follow any leads or pursue any tangible
evidence that would assist in this case,” was “ill prepar[ed]” for trial, “did not enter or
request the video from the police showing the incident on tape,” “failed to enter the
Plaintiff’s clothing worn that night showing the burn marks from the taser,” and “failed to
reenact the events so that the Court could get an idea of the circumstances and the
wrongful acts,” as his complaint alleges. On this record, therefore, plaintiff cannot
demonstrate that dismissing his case was reversible error. (See also Hurtado v. Western
Medical Center (1990) 222 Cal.App.3d 1198, 1204 [no abuse of discretion in dismissing
the case when the plaintiff is not prepared to proceed on the day of trial].)




3
       Plaintiff suggested at oral argument that it was defendant’s duty to provide the
missing transcripts because defendant had designated them on his exhibit list. Not so.
Regardless of defendant’s designation, it was plaintiff’s burden, not defendant’s, to
present evidence to establish each element of plaintiff’s cause of action. (Evid. Code,
§ 500; Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196
Cal.App.4th 456, 464 [it is plaintiff’s burden to prove each element of his cause of
action].)

                                              7
                                    DISPOSITION


      The judgment of dismissal is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                           *
                                               EDMON, J.

We concur:




      EPSTEIN, P. J.




      WILLHITE, J.




*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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