Filed 1/24/17 Certified for publication 2/1/17 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


NATHALIE THUY VAN,                                                 H041459
                                                                  (Santa Clara County
         Plaintiff and Appellant,                                  Super. Ct. No. 1-13-CV244291)

            v.

LANGUAGE LINE SERVICES, INC.,

         Defendant and Respondent.



                                                INTRODUCTION
         In this employment case, plaintiff and appellant Nathalie Thuy Van (Van)
challenges a trial court’s order sanctioning her and finding her in contempt. The trial
court found that Van had disobeyed a prior court order by refusing to attend a deposition
noticed by defendant and respondent Language Line, Inc. (Language Line) and had
engaged in other discovery violations relating to her deposition. However, the prior court
order Van was found to have disobeyed did not order her to attend a deposition and it was
not issued as a result of a motion to compel. It was instead only a denial of Van’s own ex
parte application to have her deposition stayed. Language Line did file a motion to
compel Van’s attendance (and Van filed a motion to quash the deposition notice) but
these were never ruled upon before the case was dismissed. There was, therefore, no
prior court order which Van disobeyed and no determination as to whether Van had a
substantial justification for not attending her deposition or whether she had a valid
objection to the various deposition notices served by Language Line (such as Van’s claim
that the location was more than 80 miles from her home.)1
       Van asks that we reverse the order finding her in contempt and sanctioning her.
As explained below, we will exercise our discretion to treat Van’s appeal as a writ of
prohibition insofar as the trial court found her in contempt and we will annul that finding.
We will also reverse and remand for recalculation the trial court’s order sanctioning Van
in the amount of $7,713.
                        FACTUAL AND PROCEDURAL BACKGROUND
       This discovery dispute arose from a lawsuit filed by Van against her employer,
Language Line, in which she alleged several wrongful employment practices, including
discrimination because of her Vietnamese background, harassment based on her race, and
a variety of wage and labor law violations. Although both parties raise a host of
arguments relating to the complicated procedural background of this case, we recount
here only those that are relevant to our analysis.
       Starting in May 2014,2 Language Line began trying to take Van’s deposition. The
first deposition notice, served on May 21, called for Van to appear on June 12 and June
13 at Language Line’s offices in Monterey. A few days later, on May 27, Van objected,
stating, among other things, that the location set for the deposition was more than
75 miles from her residence in Milpitas (in violation of Code of Civil Procedure
section 2025.250, subdivision (a)3), that Language Line had not yet produced certain
       1
         Van claimed that the location of the deposition violated Code of Civil Procedure
section 2025.250, subdivision (a), which requires that the deposition be “within 75 miles
of the deponent’s residence . . .” if, as was the case here, the residence and the deposition
location are in different counties. Language Line asserted that the driving distance was
exactly 75 miles and that the distance should be measured as a straight line, rather than
driving distance, and that distance was even shorter.
       2
           To avoid needless repetition, any dates we mention in this opinion refer to 2014.
       3
           All further statutory references are to the Code of Civil Procedure.

                                               2
documents in response to her discovery requests, and that the deposition notice was
“oppressing” her. Van also notified Language Line that she would be filing an ex parte
application on May 29, requesting a stay of her deposition until a pending motion she had
already filed to compel Language Line to produce documents could be heard.
       After some discussions between the parties which did not resolve matters,
Language Line served an amended deposition notice, changing the dates of Van’s
deposition to begin on June 19.4 Van responded by essentially repeating, in writing, her
previous objections, but this time noting that she would file an ex parte application on
June 3 asking for an order compelling mediation and (again) staying her deposition
pending her motion to compel the production of Language Line’s documents.
       Van filed her ex parte application on June 3. The trial court denied it in an order
signed and filed the same date. The text of the order reads as follows: “Having reviewed
PLAINTIFF’s ex parte application for an order to mediate and for an order to stay
Deposition of Plaintiff Nathalie Thuy Van, and good cause appearing, [¶] IT IS
HEREBY ORDERED that the parties: [¶] DENIED. [¶] IT IS SO ORDERED.” (The
disjointed language, which we point out with no intended criticism, is explained by the
fact that the trial court simply crossed out Van’s proposed order granting her ex parte
application and wrote “DENIED” across it.)5
       On two more occasions, Van objected to the pending deposition, still scheduled to
begin on June 19. On that date, counsel for Language Line appeared for the deposition at
the location in Monterey but Van did not attend.6 More deposition notices were sent and
       4
         The facts summarized here are taken from Language Line’s memorandum in
support of its motion for “OSC Re: Contempt of Court, Monetary Sanctions, And For
Terminating Sanctions Or, In The Alternative, To Compel Plaintiff’s Appearance.”
       5
           We will refer to the denial of Van’s ex parte application as the “June 3 order.”
       6
          The trial court’s contempt and sanctions order states that this occurred on
July 19 and not June 19. This appears to be a typographical error, as the only deposition
date set for July in the notices in the record were scheduled for July 28 and 29.
                                               3
each was met with essentially the same objections. The last notice, served on July 25,
requested that Van appear on August 28 and 29 at the same location as noticed before in
Monterey.
       On July 28, 2014, Language Line filed the motion that gave rise to the order we
are called upon to review. It was titled a motion for “OSC Re: Contempt of Court,
Monetary Sanctions, And For Terminating Sanctions Or, In The Alternative, To Compel
Plaintiff’s Appearance.” Language Line argued that Van’s failure to appear for her
deposition on June 19 was in defiance of the court’s June 3 order denying Van’s ex parte
motion to stay. Language Line sought fees and costs associated with its counsel’s
appearance in Monterey on June 19 and terminating and monetary sanctions for what it
argued were Van’s defiance of the June 3 order. As an alternative to the terminating
sanctions, Language Line sought an order compelling Van’s appearance at deposition on
August 28 and 29. Language Line also sought sanctions in the form of attorney fees for
preparation of its motion.
       On July 29, one day after Language Line filed its motion, Van filed a “motion to
quash” Language Line’s latest deposition notice, arguing, among other things, that the
noticed location for the deposition was more than 75 miles from her residence and that
the taking of the deposition was unfair in light of what Van viewed as Language Line’s
delays in producing documents. Van also filed an opposition to Language Line’s
sanctions motion on August 8.
       Language Line’s motion was heard on August 21.7 The written order was signed
on September 2 and filed on September 5.8 In general, it consists of three main parts.

       7
         Language Line’s motion to augment the record on appeal with the transcript of
the hearing on August 21 was granted by separate order.
       8
         We will refer to this as the “September 2 order.” It appears that the trial court
filed two orders on the same date, one of which is signed by hand and the other signed
with a stamp. Because they are identical in substance, this does not affect our analysis.

                                             4
First, the court sanctioned Van $1,050 (as attorney fees to Language Line) for her
unsuccessful ex parte application, which was found to be without substantial justification.
       In the second part, the trial court recounted that even after entry of the June 3
order, Van kept objecting to Language Line’s deposition notices, asserted that she would
not appear until Language Line had produced documents, submitted a “Notice of
Unavailability,” and claimed that she was confused by the information she had received
from the court. But, the court noted, it was more likely that Van kept repeating her
objections because she “fully appreciated that the June 3 order was entirely valid and . . .
she was refusing to comply with it.” Finding that Van had “failed to submit to an
authorized method of discovery, disobeyed a court order to provide discovery, and failed
to comply with a deposition notice,” the court granted sanctions in the amount of attorney
fees to Language Line in the amount of $7,713.
       In the third part of the order, the court delayed ruling on Language Line’s request
for terminating sanctions and alternative motion to compel Van’s appearance at
deposition (all of which was included in Language Line’s motion) until August 29, which
was also set as the date that the court would hear Van’s motion to quash.
       On August 26 (several days after the hearing on Language Line’s motion but
before a written order was signed or filed), Van submitted a request for dismissal, which
was entered by the clerk on the same day. On September 19, Van filed the notice of
appeal giving rise to our review of this matter. Subsequently, in an order signed on
September 23, the trial court granted judgment to Language Line awarding it costs as the
prevailing party in the amount of $4,760. The judgment also reiterated that, consistent
with the September 2 order, Van was to pay Language Line $8,763, for a sum total of
$13,523.
                                        DISCUSSION
       As the title to the September 2 order shows, the trial court both found Van in
contempt and sanctioned her in the amount of $8,763. Sanction orders for greater than
                                              5
$5,000 are appealable. (§ 904.1, subd. (a)(12).) But orders “made in cases of contempt,
are final and conclusive” (§ 1222) and are not directly appealable. (§ 904.1,
subd. (a)(1)(B).) Review of a contempt finding is available by writ, such as a writ of
prohibition. (See Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1165
(Koehler).)
       Here, Van filed only a notice of appeal and did not file a writ. However, “Courts
of Appeal not infrequently treat an appeal as a writ and determine the issue presented.”
(Patchett v. Bergamot Station, Ltd. (2006) 143 Cal.App.4th 1390, 1396.) This is done
when the interests of justice require and in the appellate court’s discretion. (County of
Orange v. Superior Court (2007) 155 Cal.App.4th 1253, 1257.) Because of the stigma
that attaches to a finding of willful disobedience of a court order, we will exercise our
discretion to treat Van’s appeal in this case, insofar as it concerns the trial court’s finding
of contempt, as a writ. The award of sanctions will be reviewed as an appeal in the usual
course under section 904.1, subdivision (a)(12).9
       There are arguments, however, which Van raises in her brief which we cannot
address. Van argues, for example, that the trial court abused its discretion in granting
Language Line costs as the prevailing party in the amount of $4,760. The judgment


       9
           We will also disregard several apparent typographical mistakes in Van’s notice
of appeal. She indicates, for example, that the order being appealed from was entered on
“9/5/2014;9/8/2014.” There is no order in the record which was entered on September 8
but it is evident that Van meant to refer to the September 2 order, which was filed on
September 5. In addition, Van noted that she was appealing from an “order after
judgment under Code of Civil Procedure section 904.1(a)(2),” which applies to certain
orders “made after a judgment” and is not relevant here because judgment was entered on
September 23, after the notice of appeal was filed on September 19. In her brief,
however, Van refers to section 904.1, subdivision (a)(12), which, as already mentioned, is
applicable to the September 2 order insofar as it sanctioned Van. Although we do not
condone these errors, we will apply the rule that notices of appeal should be liberally
construed to provide for a hearing on the merits, and construe the notice accordingly.
(Conservatorship of (1989) 215 Cal.App.3d 1390, 1393.)

                                               6
awarding those costs, however, was not signed until September 23 and not filed until
September 30. This was after Van filed her notice of appeal on September 19. There is
no evidence in the record that Van ever appealed this judgment or costs award. Our
jurisdiction extends to “judgment[s] or order[s] appealed from” and not to any “decision
or order from which an appeal might have been taken.” (§ 906, italics added.) We
therefore will not address this order.10 In addition, there is no indication that Van ever
filed a motion to tax costs in the trial court. She has therefore forfeited the right to object
to it. (See Santos v. Civil Serv. Bd. (1987) 193 Cal.App.3d 1442, 1447.)
I.     The Finding of Contempt and the Sanctions for Disobeying the Court’s June 3
Order is Reversed
       The issue of Van’s supposed disobedience of the June 3 order constitutes the
major portion of the sanctions amount and also raises the issue of contempt. In its papers
in support of this portion of the September 2 order, Language Line argued, in emphatic
text, that Van’s disobedience of the June 3 order constituted a “Contempt of Court,”
made clear that it was asking for a “contempt sanction” and referred to Van’s “direct
defiance”of the June 3 order. And though it did not invoke sections 1221 through 1222,
which are often used for contempt proceedings, Language Line did invoke section
2023.030, subdivision (e), which allows courts to treat discovery misuse as a “contempt
of court.”
       The trial court’s order, which granted Language Line’s motion for an order to
show cause “Re: Contempt of Court,” can only reasonably be interpreted as having
accepted Language Line’s argument that a contempt had occurred. While the trial court
also invoked its authority to impose discovery sanctions under sections 2023.010 and
2025.450 (which could have given rise to sanctions without a finding of contempt), we
       10
          For the same reasons, we also will not consider any issues surrounding Van’s
apparent attempt to stay the judgment and writ of execution in the trial court filed on
November 25, which Van makes fleeting references to in her brief.

                                               7
believe that this portion of the order did what Language Line asked the court to do, which
was to both sanction Van and treat the discovery violations as a contempt of court. We
will review this portion of the order accordingly.
       A. Standards of Review
       Orders imposing discovery sanctions are reviewed under the abuse of discretion
standard and are subject to reversal only for arbitrary, capricious, or whimsical action.
(Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1560 (Tucker); see
also Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123 [“abuse of discretion
standard of review ordinarily applies . . . [citation] to review of an order imposing
discovery sanctions for discovery misuse”].)
       Contempt findings, however, are subjected to much more rigorous review.
“[T]here is no presumption of regularity in contempt proceedings [citations], nothing can
be implied in support of an adjudication of contempt [citation], and the record must be
strictly construed in favor of petitioner, the one found in contempt. [Citation.] (Koehler,
supra, 181 Cal.App.4th at pp. 1166-1167.)11 “In reviewing this proceeding, the charge,
the evidence, the findings, and the judgment are all to be strictly construed in favor of the
accused [citation], and no intendments or presumptions can be indulged in aid of their
sufficiency. [Citation]. If the record of the proceedings, reviewed in light of the
foregoing rules, fails to show affirmatively upon its fact the existence of all the necessary
facts upon which jurisdiction depended, the order must be annulled. [Citation.]”
(Hotaling v. Superior Court (1923) 191 Cal. 501, 506.)
       “The facts essential to jurisdiction for a contempt proceeding are ‘(1) the making
of the order; (2) the knowledge of the order; (3) ability of the respondent to render

       11
         Of the three different types of contempt (direct, hybrid, and indirect), because
Van’s conduct consisted in the supposed disobedience of a court order outside of
presence of the judge, it is categorized as indirect contempt. (See Koehler, supra, 181
Cal.App.4th at p. 1159.)

                                              8
compliance, (4) willful disobedience of the order.’ [Citations.]” (In re Liu (1969) 273
Cal.App.2d 135, 140-141, fn. omitted.) A contempt proceeding is “punitive and separate
from the cause out of which it arises [citation], and it is for this reason that every ‘i’ must
be dotted and every ‘t’ crossed.” (Cedars-Sinai Imaging Medical Group v. Superior
Court (2000) 83 Cal.App.4th 1281, 1287.) Whether the acts complained of “constituted a
contempt is jurisdictional, and in the absence of evidence showing contempt” the order
must be annulled. (Arthur v. Superior Court (1965) 62 Cal.2d 404, 409.)
       B. The June 3 Order Did Not Provide a Basis For Either Contempt or For
           Sanctions
       We conclude that neither the contempt finding nor the imposition of sanctions of
$7,713 can be affirmed. The trial court found that Van “persisted in repeating
[o]bjections to [her deposition] because she fully appreciated that the June 3 order was
entirely valid and . . . she was refusing to comply with it.” The September 2 order also
states that Van “attempted again to grant herself by another means the relief the court had
denied.” The trial court also found that Van “failed to submit to an authorized method of
discovery, disobeyed a court order to provide discovery, and failed to comply with a
deposition notice.”
       However, as noted above, the substance of the June 3 order consists, in essence, of
one word: “DENIED.” The order did not compel Van to attend her deposition. The only
motion to compel that was filed was included in Language Line’s motion which resulted
in the September 2 order. And that portion of Language Line’s motion was never ruled
upon because it was continued to another date and the case was dismissed before that
date arrived.
       This means that section 2025.450, which was cited, at least in part, as authority for
granting finding Van in contempt and sanctioning her, did not provide a proper basis for
the trial court’s order. That section provides for sanctions against a party which, among
other things, “fails to appear for examination” after a deposition notice has been served.
                                               9
(§ 2025.450, subd. (a).) But those sanctions are to be imposed “[i]f a motion [to compel]
is granted . . . .” (§ 2025.450, subd.(g)(1), see also § 2025.450, subd. (h) [referring to
sanctions for failing to “obey an order compelling attendance”].) The September 2 order
seems to have assumed that an order requiring Van’s attendance at a deposition had
already been issued and then proceeded to find Van in contempt of that order. Notably,
the September 2 order did not specifically recite which portion of the June 3 order Van
was found to have disobeyed. (Koehler, supra, 181 Cal.App.4th at p. 1169.)
       “ ‘Punishment for contempt ‘can only rest upon [a] clear, intentional violation of a
specific, narrowly drawn order. Specificity is an essential prerequisite of a contempt
citation. [Citations, fn. omitted.]” (Board of Supervisors v. Superior Court (1995) 33
Cal.App.4th 1724, 1737.) Because the June 3 order was not an order compelling Van’s
attendance, we annul the September 2 insofar as it found Van in contempt.
       For the same reasons, we reverse the September 2 order insofar as it sanctioned
Van for disobedience of a court order. We believe it is an abuse of discretion to sanction
a party for disobeying an order which neither compelled nor prohibited any action.
       However, Language Line raised in its motion other supposed discovery violations,
including Van’s refusal to be deposed until certain demands were met and her attempts to
make herself unavailable, which both were noted by the trial court and could possibly
constitute discovery misuse under section 2023.010. Because the September 2 order did
not delineate the behavior that justified the general sanctions award of $7,713, we will
remand to the trial court for recalculation. (See Tucker, supra, 186 Cal.App.4th at
pp. 1564-1565 [reversing sanctions award and remanding for recalculation].)12
       12
          Language Line also points out that Van filed an almost identical lawsuit in
federal court and was found to have engaged in “vexatious litigation tactics.” (See Van v.
Language Lin. Servs. (N.D. Cal. Jan. 16, 2015, No. 14-CV-3791-LHK) 2015 U.S.Dist.
Lexis 6395 [*8-9].) To the extent that Judge Lucy H. Koh commented on the effect of
the June 3 order and Van’s disobedience of it, we note that the decision was obviously
made before this appeal was decided. In addition, we deny Van’s motion to dismiss this
appeal based on Judge Koh’s decision to sanction her in federal court if we would only
                                              10
       As to the $1,050 sanctions amount for Van’s unsuccessful June 3 ex parte
application to stay her deposition and order the parties to mediate, we see no meritorious
claim of error advanced by Van, nor does Van argue that Judge Lucas’s denial of the ex
parte application itself was improper.13
                                       DISPOSITION
       The trial court’s finding that Van was in contempt of court is annulled. The
$7,713 sanctions amount is reversed and remanded for recalculation consistent with the
views expressed herein. Van is to recover costs on appeal.


                                           ______________________________________
                                                      RUSHING, P.J.


WE CONCUR:


____________________________________
           PREMO, J.


____________________________________
           GROVER, J.




“advise her” as to whether payment of the sanctions in Van’s federal action would satisfy
the judgment entered by the trial court in this case. The rule cited by Van as a basis for
this motion is inapplicable, as it refers only to cases which have been settled. (See Cal.
Rules of Court, rule 8.244(a)(1).) We take no view on the sanctions entered against Van
by Judge Koh or the effect of them in this action.
       13
          We have considered the remaining arguments raised by Van and find that none
of them warrant any different result than as stated herein. In addition, Language Line’s
request for sanctions for filing a frivolous appeal is denied.

                                            11
Filed 2/1/17

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


NATHALIE THUY VAN,                                  H041459
                                                   (Santa Clara County
Plaintiff and Appellant,                            Super. Ct. No. 1-13-CV244291)

   v.

LANGUAGE LINE SERVICES, INC.,

Defendant and Respondent.



         THE COURT:
         The opinion in the above-entitled matter filed on January 24, 2017, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.




Dated:                                     _________________________________
                                                      RUSHING, P.J.


                                           _________________________________
                                                      PREMO, J.


                                           _________________________________
                                                      GROVER, J.
Trial Court:                                 Santa Clara County Superior Court
                                             Superior Court No.: CV244291


Trial Judge:                                 The Honorable Beth A.R. McGowan




Attorneys for Plaintiff and Appellant        Nathalie Thuy Van, in pro per
Nathalie Thuy Van:




Attorneys for Defendant and Respondent       Jackson Lewis P.C.
Language Line Services, Inc.:
                                             Heath A. Havey
                                             Joel P. Kelly

                                             Johnson Schachter & Lewis

                                             Sander J. van der Heide




                                         2
