Filed 11/18/15 Stewart v. Home Depot U.S.A. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



LINDSEY E. STEWART,                                                 D066812

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00031103-
                                                                    CU-WT-NC)
HOME DEPOT U.S.A., INC., et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County,

Jacqueline M. Stern, Judge. Affirmed.

         Lindsey E. Stewart, in pro. per., for Plaintiff and Appellant.

         Lee Tran & Liang, Steven C. Gonzalez, Anthony D. Sbardellati and Lacey

Rainwater, for Defendants and Respondents.



                                                 INTRODUCTION

         Lindsey E. Stewart appeals from two orders: (1) an order compelling her to

respond to a request for production of documents propounded by Home Depot U.S.A.,
Inc. and Dorothy Perkins (collectively, Home Depot), and (2) an order imposing

terminating and monetary sanctions for her noncompliance. Although these orders are

not appealable (Code Civ. Proc., § 904.1), we exercise our discretion to construe the

appeal as being from the subsequent judgment, with the issues on appeal limited to the

propriety of the two orders. (See Cal. Rules of Court, rule 8.104(d)(2); Vitkievicz v.

Valverde (2012) 202 Cal.App.4th 1306, 1310, fn. 2.) Having reviewed the propriety of

the orders, we discern no abuse of discretion by the trial court and affirm the judgment.

                                     BACKGROUND

       Stewart sued Home Depot, alleging causes of action for disability discrimination

and tortious discharge/retaliation in violation of public policy. Home Depot subsequently

served Stewart with a request for production of documents. The request sought

production of 30 categories of documents related to Stewart's employment with Home

Depot and the causes of action in her complaint.

       Stewart did not respond to the request or produce any responsive documents.

After multiple unsuccessful e-mail exchanges seeking a response, Home Depot filed a

motion to compel a response. The court granted the motion and ordered Stewart to serve

a verified response to the request, without objections, and to produce responsive

documents within 10 days.

       After multiple unsuccessful attempts to obtain Stewart's compliance with the

court's order, Home Depot filed a motion seeking terminating sanctions. The court

granted the motion, struck Stewart's complaint, and awarded Home Depot monetary

sanctions of $2,925. In reaching its decision, the court specifically found Stewart had

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notice of the order compelling her to provide a verified response and produce responsive

documents and disobeyed the order knowing the potential consequences.

                                         DISCUSSION

       " 'California discovery law authorizes a range of penalties for conduct amounting

to "misuse of the discovery process," ' including terminating sanctions. [Citations.]

Misuses of the discovery process include the following: '(d) Failing to respond or to

submit to an authorized method of discovery. [¶] . . . [¶] (g) Disobeying a court order to

provide discovery.' (Code Civ. Proc., § 2023.010.)" (Los Defensores, Inc. v. Gomez

(2014) 223 Cal.App.4th 377, 390 (Los Defensores).)

       "Code of Civil Procedure section … 2023.030 authorizes a trial court to impose

monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against

'anyone engaging in conduct that is a misuse of the discovery process.' " (Doppes v.

Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) "As to terminating sanctions,

Code of Civil Procedure section 2023.030, subdivision (d) provides: 'The court may

impose a terminating sanction by one of the following orders: [¶] (1) An order striking

out the pleadings or parts of the pleadings of any party engaging in the misuse of the

discovery process.' " (Id. at p. 992.)

       " ' "The power to impose discovery sanctions is a broad discretion subject to

reversal only for arbitrary, capricious, or whimsical action." ' [Citation.] 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

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obtain the discovery.' [Citation.] 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.'

[Citation.] Under this standard, trial courts have properly imposed terminating sanctions

when parties have willfully disobeyed one or more discovery orders." (Los Defensores,

supra, 223 Cal.App.4th at p. 390.)

       "We review the trial court's order under the abuse of discretion standard and

resolve all evidentiary conflicts most favorably to the trial court's ruling. We will reverse

only if the trial court's order was arbitrary, capricious, or whimsical. It is appellant's

burden to affirmatively demonstrate error and where the evidence is in conflict, we will

affirm the trial court's findings. [Citation.] We presume the trial court's order was

correct and indulge all presumptions and intendments in its favor on matters as to which

it is silent." (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224; Los Defensores,

supra, 223 Cal.App.4th at pp. 390-391.) Additionally, since Stewart has not provided

reporter's transcripts of the proceedings below, " 'we must treat this as an appeal "on the

judgment roll." [Citations.] Therefore, … [o]ur review is limited to determining whether

any error "appears on the face of the record." ' " (Kucker v. Kucker (2011) 192

Cal.App.4th 90, 93.)

       Here, the record shows Home Depot propounded a request for production of

documents, Stewart did not respond to the request, and Home Depot moved for and

obtained an order compelling Stewart's response. The record further shows Stewart

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failed to comply with the order even though she knew about it, knew the potential

consequences for noncompliance, and had ample opportunity to comply. The record also

shows Stewart had a history of discovery abuse, including improperly attempting to

obtain discovery via e-mail requests and filing patently untimely discovery motions.

Finally, the record shows Home Depot made multiple informal attempts to obtain the

requested discovery and Stewart's failure to comply with the court's order effectively

prevented Home Depot from adequately preparing for trial. Under these circumstances,

we cannot conclude the court abused its discretion in ordering Stewart to respond to

Home Depot's request for production of documents or in imposing terminating sanctions

for her noncompliance.

                                     DISPOSITION

       The judgment is affirmed. Respondents are awarded their costs on appeal.




                                                                      MCCONNELL, P. J.

WE CONCUR:


BENKE, J.


O'ROURKE, J.




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