Filed 11/28/17; publication order 12/19/17 (see end of opn.)




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                              DIVISION TWO



CREED-21,

        Plaintiff and Appellant,                               E066367

v.                                                             (Super.Ct.No. RIC1504199)

CITY OF WILDOMAR,                                              OPINION

        Defendant and Respondent;

WAL-MART REAL ESTATE
BUSINESS TRUST,

      Real Party in Interest and
Respondent.



        APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.

Affirmed.

        Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and

Appellant.

        Manatt, Phelps & Phillips, Keli N. Osaki; Burke, Williams & Sorensen, Thomas

D. Jex and Amy E. Hoyt for Defendant and Respondent.


                                                         1
       Manatt, Phelps & Phillips, Keli N. Osaki; Burke, Williams & Sorensen, Thomas

D. Jex and Amy E. Hoyt for Real Party in Interest and Respondent.

       Plaintiff and Appellant Creed-21 appeals from the dismissal of its petition for writ

of mandate and complaint for declaratory and injunctive relief under the California

Environmental Quality Act (Petition). The trial court imposed an issue sanction on

standing, which terminated the action, for the misuse of the discovery process in response

to a motion for sanctions pursuant to Code of Civil Procedure section 2023.0301 filed by

real party in interest and respondent Wal-Mart Real Estate Business Trust (Wal-Mart).

We conclude the trial court did not abuse its discretion in imposing the terminating

sanction.

                     FACTUAL AND PROCEDURAL HISTORY

       A.     PROCEDURAL HISTORY

              1.     COMPLAINT

       On April 8, 2015, Creed-21, represented by the Briggs Law Corporation,

specifically attorney Anthony Kim, filed its Petition. Creed-21 alleged it was a non-

profit, social-advocacy organization formed and operating under the laws of California

and that at least one member resided in or near defendant and respondent City of

Wildomar (City).




       1 All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.


                                             2
       The project being challenged was a 185,682 square foot Walmart retail complex

(the Project) located in the City. On March 11, 2015, the City’s council approved the

Project. Creed-21 alleged that the Project violated CEQA and other laws. Creed-21

alleged against the Wal-Mart and the City (collectively, the Wildomar Defendants) that

they failed to prepare an adequate environmental impact report and they violated the

planning and zoning law within the meaning of Government Code section 65860. Creed-

21 sought to stop the Wildomar Defendants from taking any action on the Project until

they complied with CEQA and the planning and zoning laws.

       City filed an answer to the Petition. City alleged that Creed-21 did not have

standing to bring the action. The trial court set a briefing schedule with Creed-21’s

opening brief due December 24, 2015; the Wildomar Defendants’ joint opposition brief

due January 25, 2016; and Creed 21’s reply brief being due on February 15, 2016.

              2.     WAL-MART’S FIRST MOTION TO COMPEL DEPOSITION AND

                     DOCUMENT PRODUCTION

       On or about November 20, 2015, Wal-Mart filed a motion to compel pursuant to

section 2025.450, subdivision (a) seeking an order to have Creed-21’s person most

qualified (PMQ) appear for a deposition. It also sought monetary sanctions. It sought a

hearing on January 5, 2016, and the deposition to take place no later than January 12,

2016. Wal-Mart alleged that Creed-21’s PMQ had refused to appear for a deposition

despite proper notice and without substantial justification. It could not adequately defend

against Creed-21’s conclusory allegation that it had standing to pursue the lawsuit

without such deposition.


                                             3
       Wal-Mart was informed and believed that Creed-21 was a shell corporation, which

consisted of two members including Richard Lawrence, who lived in San Diego. The

address utilized by Creed-21 as its place of business was the Briggs Law Corporation.

Creed-21 had no assets, and in prior lawsuits in which money was awarded to Creed-21,

the money was given to the Briggs Law Corporation. Depending upon the testimony of

the PMQ, Wal-Mart would challenge Creed-21’s standing in its opposition to the

Petition. Wal-Mart insisted that discovery was proper in the administrative mandamus

proceeding to challenge standing. In addition, it sought all of the documents related to

the corporation.

       Wal-Mart had served Creed-21 with its initial deposition notice on August 25,

2015. It also requested documents pertaining to the corporation. The deposition was set

for September 15, 2015, in Costa Mesa. Creed-21 objected to the deposition date, that

discovery was not appropriate in a mandamus proceeding, and that the deposition

location was 75 miles from the PMQ’s residence. Wal-Mart sent a meet and confer letter

to the Briggs Law Corporation, specifically Cory Briggs and Kim. Wal-Mart requested

the PMQ’s address so that a location for the deposition could be found closer to the

PMQ’s home. Wal-Mart received no response. Wal-Mart sent several emails to Kim but

received no response. Wal-Mart scheduled another deposition for October 14, 2015.

Creed-21 again objected on the same grounds as the first objection and advised Wal-Mart

that the PMQ would not appear at the deposition. Creed-21 refused to submit the PMQ

for the deposition.




                                             4
       Briggs responded to Wal-Mart’s counsel on October 8, 2015, indicating that he

had been in trial. Briggs stated that Wal-Mart was not allowed to conduct discovery and

that Creed-21 had standing as a public-interest organization enforcing public duties; its

membership was irrelevant; and the good standing of the corporation could be verified

with the California Secretary of State. Briggs recommended letting the trial court decide

the issue. He recommended that either Wal-Mart file a motion to compel, or he would

file a motion for a protective order. Wal-Mart responded it would file the motion to

compel.

       To the motion to compel, Wal-Mart attached a reporter’s transcript for case No.

BC131065 in Los Angeles Superior Court, Creed-21 v. City of Glendora, of a hearing

conducted on July 6, 2015. Creed-21 was represented by Briggs Law Corporation.

Lawrence testified that he was the President of Creed-21. There was only one other

officer in Creed-21. Briggs Law Corporation prepared all the tax returns for Creed-21.

The address for Creed-21 was Briggs Law Corporation in Upland. Lawrence had no idea

how many members of Creed-21 existed. Lawrence indicated Creed-21 had no money

and no employees. Briggs Law Corporation fronted the money for any lawsuits it filed.

It also paid any fees owed by Creed-21. Creed-21 had no assets.

       Creed-21 filed opposition to the motion to compel the PMQ’s deposition. Creed-

21 alleged there were additional members of the corporation. Further, there was no

discovery allowed in administrative mandamus proceedings; the proceedings were

limited to the administrative record, which is the only evidence relevant to determine the

issue of whether the law was followed. Creed-21 argued that even issues of standing did


                                             5
not require discovery. The Petition had properly alleged there were members in

Wildomar and there was no further issue as to standing. Even considering Lawrence’s

testimony in a separate proceeding, Lawrence acknowledged other members in Creed-21

but did not know their names.

       Wal-Mart filed its reply. It advised the trial court it only sought to conduct

discovery to determine standing and nothing in Creed-21’s opposition negated that Wal-

Mart could conduct discovery.

       The matter came on for hearing on January 5, 2016. The trial court issued a

tentative ruling that Creed-21 was to produce the PMQ for deposition and produce all

requested documents within 10 court days of the ruling. Wal-Mart was awarded $3,000

in attorney fees and costs. The court found, “[P]etitioner repeatedly has failed to provide

the home address of its PM[Q] or otherwise establish that the Costa Mesa location

exceeds the permissible geographical limits of CCP § 2025.250(a). The names of

individual members which appear in produced documents are to be redacted.” The

hearing is not part of the record. Kim appeared for Creed-21. The final ruling of the trial

court was as follows: “Following the appearances of counsel at the hearing on the

Motion, Walmart objected to the form of CREED-21’s notice of intent to appear at the

hearing, which was done via email as opposed to telephone or in person. The Court

agreed with Walmart’s objection and held that the tentative ruling on the Motion issued

on January 4, 2016, is the final ruling.”




                                             6
              3.     CREED-21’S MOTION FOR RELIEF FROM ORDER ON MOTION

                     TO COMPEL

       On January 12, 2016, Creed-21 sought relief from the order on the motion to

compel based on the mistake, inadvertence or excusable neglect on the part of its counsel.

Creed-21 acknowledged that its counsel, Kim, had notified Wal-Mart via email that it

was seeking to appear at oral argument, and that according to Riverside County Superior

Court local rules that notification was to be conducted by telephone. Creed-21’s counsel

was unaware of the local rule. If counsel had been granted oral argument, he would have

argued that discovery was not appropriate. Creed-21 for the first time alleged that the

PMQ was Lawrence, who resided 90 miles from Costa Mesa. Kim submitted his

declaration acknowledging not being aware of the local rule.

       Creed-21 submitted a copy of its opening brief in the action with the motion for

relief from order on motion to compel, which had been filed on or about December 24,

2015. Creed-21 alleged several deficiencies in the environmental impact report including

that it did not properly address traffic concerns, it failed to address impact on the other

surrounding stores, and its analysis of air quality issues was insufficient. Creed-21

presented the declaration of Ruby J. Jimenez signed on December 21, 2015, who declared

that she lived and worked in Wildomar along with other members of Creed-21.

       Wal-Mart filed a response to the motion for relief from order on motion to compel,

arguing there was no valid basis for the motion. Kim’s failure to check the local rules

was professional incompetence and not a mistake that justified relief. Any request to

reconsider the motion to compel was also not supported by new facts or law. Wal-Mart


                                              7
submitted correspondence with Creed-21’s counsel since January 5, 2016, seeking to set

the deposition of the PMQ. No response had been received from Creed-21. Creed-21

filed a response essentially rearguing the reasons relief should be granted.

       On January 19, 2016, the Wildomar Defendants filed an ex parte application to

provide supplemental briefing 10 days after the PMQ had been deposed to supplemental

its opposition to the Petition. The Wildomar Defendants did not want to extend the

briefing deadline for its opposition brief because the Project was on hold while the

litigation was pending.

       The ex parte application was heard on January 20, 2016. Creed-21 argued that in

its opening brief it had proved standing by naming a member who lived in Wildomar.

Moreover, the Wildomar Defendants sought to depose the PMQ, who was Lawrence, not

Jimenez. The Wildomar Defendants had sufficient knowledge of standing to file their

opposition brief.

       At the hearing on Creed-21’s motion for relief from order on motion to compel

deposition held on February 1, 2016, the trial court determined that it was going to deny

the relief and the deposition was to go forward. Kim stated that Briggs had a family

emergency and Briggs was the attorney who would defend the deposition. Accordingly,

the deposition needed to be extended to February 22, 2016, and Creed-21 would agree to

extend the date the opposition brief to the Petition was due. The trial court advised Kim

to agree to the deposition on February 8 and to make an ex parte application if the date

did not work. However, any ex parte application would have to provide good cause to

continue the deposition.


                                             8
              4.     CREED-21’S PETITON FOR WRIT OF MANDATE FILED IN THE

                     COURT OF APPEAL

       Creed-21 filed a petition for writ of mandate for immediate stay in this court, case

No. E065323. Creed-21 argued that discovery was not appropriate in the action since it

involved CEQA and also intruded on the privacy of Creed-21 members. Creed-21

claimed that if this court did not stay the matter, it would be forced to disclose

constitutionally protected material. It sought for this court to either (1) issue an

alternative writ of mandate commanding the trial court to vacate its February 1, 2016

order, and either deny the discovery motion altogether or narrow the discovery; (2) issue

a writ of prohibition commanding the trial court to take no further action on its February

1, 2016, order; or (3) hold a hearing. On February 5, 2016, this court denied the petition

for writ of mandate and request for automatic stay without a hearing.

              5.     CREED-21’S EX PARTE APPLICATION TO EXTEND

                     DEPOSITION

       On February 3, 2019, Creed-21 filed an ex parte application seeking to vacate the

trial court’s order setting the PMQ’s deposition on February 8, 2016. It sought to extend

the deadline to February 24, 2016. The application was submitted on the basis that

Briggs’s parent had undergone major surgery on February 3, and Briggs had to stay with

the parent for the following three weeks. Briggs submitted a declaration that he was the

only child of his parent who could provide care. His parent would need care for three

weeks. Briggs was unable to perform his normal work duties for those three weeks.




                                              9
       Wal-Mart opposed the ex parte application. Wal-Mart noted that it had originally

noticed the deposition of the PMQ on September 5, 2015. Since that time, Creed-21 had

refused to produce the PMQ for deposition and submit the requested documents despite

two court orders to comply with discovery requests. Creed-21 sought to extend the time

for the deposition past the date that the Wildomar Defendants’ opposition brief was due.

Creed-21 had failed to establish good cause for the extension. The declaration provided

by Creed-21 did not explicate why Kim could not defend the deposition. Kim had filed

all of the documents in the case and appeared at all of the hearings. Further, Briggs’s

declaration did not explain why Briggs could not attend a one-day deposition.

       The trial court heard the matter on February 4, 2016. Kim was present and

advised the trial court that Briggs’s father had undergone surgery the day prior to the

hearing. Briggs was the only child who was able to care for his father. The trial court

inquired whether a caregiver could stay with Briggs’s father for one day while the

deposition took place. Kim indicated that he did not know the details and did not know if

a caregiver could be found.

       The trial court ruled that “[w]ithout a showing that literally nothing else is

available, I’m not going to continue this again. This had been dragged out and dragged

out.” The trial court found the Wildomar Defendants were entitled to get the case

moving. The trial court expressed that caregivers should be available. Moreover, the

documents requested by the Wildomar Defendants should have been produced. The trial

court denied the ex parte application to continue the deposition.




                                             10
                6      THE WILDOMAR DEFENDANTS’ OPPOSITION BRIEF

      On February 22, 2016, despite the discovery process not being complete as set

forth ante, the Wildomar Defendants filed their opposition brief to the Petition. They

alleged that the Petition should be denied both procedurally and on the merits.2 They

alleged that Creed-21 had failed to produce their PMQ for deposition on February 8,

2016. Creed-21 was a shell corporation that Briggs used to recover attorney fees from

large corporations. Creed-21 had filed over 100 lawsuits and Briggs Law Corporation

had received all the proceeds from these actions. The Wildomar Defendants argued that

Creed-21 had two members: Lawrence, and Karin Langwasser, who was Briggs’s

cousin; Creed-21 did not have a bank account or assets; its address was Briggs Law

Corporation; and Briggs Law Corporation received all the proceeds from lawsuits and

handled all of the tax filings and corporate filings. The Wildomar Defendants argued it

would be inequitable for Creed-21 to maintain the action. They also insisted that the

declaration submitted by Jimenez did not change the result. There was no indication as to

when Jimenez joined Creed-21, but it appeared after July 6, 2015, as Lawrence had

testified on that date that there were only two members of Creed-21. Additionally, it did

nothing to change the fact that the Briggs Law Corporation was “the alter ego of

CREED-21.”




      2     We need not address the merits as the trial court dismissed the action based on
standing.


                                              11
              7.     CREED-21’S REPLY BRIEF IN SUPPORT OF THE PETITION

       Creed-21 filed its reply brief in support of the Petition on March 7, 2016. Creed-

21 alleged it was not a sham corporation set up only for attorney fees. Lawrence testified

at the prior hearing that there were other members whom he did not know. The

opposition brief ignored that Jimenez was a member of Creed-21 and she worked and

lived in Wildomar. Creed-21 showed standing by providing the declaration of Jimenez.

Moreover, the work Briggs Law Corporation performed for Creed-21 were routine

functions carried out by attorneys for their clients.

       Kim submitted a declaration that when Briggs returned to work after caring for his

parent, he immediately contacted Wal-Mart to set up the deposition of the PMQ and

produced all of Creed-21’s corporate documentation.

              8.     MOTION FOR ISSUE AND MONETARY SANCTIONS

       On March 9, 2016, Wal-Mart filed a motion against Creed-21 for issue and

monetary sanctions for violations of discovery orders. It sought the imposition of an

issue sanction establishing that Creed-21 lacked standing to bring the action and an award

of attorneys’ fees in the amount of $13,455 against Creed-21 and Briggs Law

Corporation. The motion was brought pursuant to sections 2023.030, subdivisions (a)

through (b), 2025.450, subdivision (h) and 2025.480, subdivision (k) on the grounds that

Creed-21 willfully failed to obey the trial court’s orders issued on January 5 and February

1, 2016 compelling it to produce the PMQ for deposition on the standing issue.




                                              12
         Wal-Mart alleged that Creed-21’s obstructionist conduct caused it to not be able to

adequately address standing in its opposition brief and caused thousands of dollars of

costs and attorney fees to be incurred. Creed-21’s refusal to produce the PMQ required

the trial court to reach the conclusion that Creed-21 lacked standing.

         When Briggs returned to the office after attending to his parent’s illness, he

offered a deposition date that was one business day before the Wildomar Defendants’

opposition brief was due. This “eleventh hour” attempt to produce the PMQ for

deposition did not alter the fact that Creed-21 had already disobeyed two court orders.

The Wildomar Defendants did not want to agree to a continuance of the opposition brief

due date because of the previous failures by Creed-21 to produce the PMQ. Wal-Mart

alleged that an order precluding the claim was an appropriate sanction even if it

effectively terminated the case.

         Creed-21 filed its opposition to the motion for imposition of sanctions. Creed-21

insisted that “instead of extending professional courtesy” to its counsel, Wal-Mart was

taking advantage of counsel’s family emergency by requesting sanctions and dismissal of

the action. Once Briggs returned to work, he had attempted to schedule the deposition

and provided all the requested documents. Creed-21 also argued that dismissal of the

entire action was only appropriate if Wal-Mart showed that Creed-21 had acted in bad

faith.




                                               13
         Wal-Mart filed a response to the opposition alleging that the trial court had already

rejected the excuses based on Briggs’s family emergency in denying the prior ex parte

applications. Wal-Mart alleged that Creed-21 persistently and outright refused to comply

with its discovery obligations, which supported the sanction of dismissal of the case.

Creed-21 had violated the discovery orders and its late effort to produce the PMQ did not

alter the facts. Wal-Mart was not required to show bad faith; it need only show persistent

refusal to comply with discovery. Further, the dismissal was at the discretion of the trial

court.

                9.     RULING

         The motion for sanctions was heard on April 4, 2016. The trial court noted that it

had not attempted to put together a tentative opinion. It found that the Wildomar

Defendants were not trying to take advantage of a family emergency. The trial court

found on the part of Creed-21 “a calculated attempt to delay and to avoid a deposition

beginning perhaps as early as last August, September when the first deposition was set.”

The trial court found it was impossible to determine whether the objection that the

deposition was set more than 75 miles from the deponent had merit because no address

for the deponent had been provided.

         The trial court found that the Wildomar Defendants had tried to work with Creed-

21 but got nowhere. Creed-21 did not show good faith in trying to resolve the issues.

Creed-21 would not agree to the deposition without a court order and continued to raise

the same objections. There were no attempts to change the date of the deposition but

rather a reliance on a motion for relief from the order on the motion to compel, setting the


                                              14
deposition beyond the date that the opposition brief was due from the Wildomar

Defendants. The motion for relief provided no new information and was a “[c]omplete

waste of everyone’s time.”

       Further, the trial court had ordered that the deposition be scheduled and Creed-21

responded for the first time that Briggs’s family member needed constant medical care.

The trial court advised Kim at the hearing that if an extension was needed, there needed

to be a showing that no one else could care for Briggs’s father. No such showing was

made and a writ was sought in the appellate court. There was no compliance with the

trial court’s orders even after a denial by the appellate court.

       The trial court further questioned how Briggs’s family situation precluded a

deposition from being taken. The “cursory” declaration from Briggs did not explain how

there was no possible way he could attend the deposition. Thereafter, the court

confirmed that Creed-21 had not paid Wal-Mart the $3,000 sanction previously imposed

by the trial court. The trial court concluded its tentative, “Adding that into the equation,

as well, I see that there’s no sanction that is going to result in achieving what defense was

attempting to achieve when they first noticed the deposition. Nothing has worked.

Multiple orders have been made. Sanctions have been imposed. Nothing except further

delay in the proceedings. And I don’t think at this point in light of the history, the

defense should have to choose between getting this deposition and delaying the hearing

on the merits.”




                                              15
       Kim responded that when Creed-21 got the notice of deposition, it did not believe

that discovery was permitted. Creed-21 wanted a court order that discovery was

appropriate. Kim also indicated that when Briggs returned to the office, he immediately

contacted Wal-Mart about setting up the deposition and extending the time for briefing.

       The trial court found that the Wildomar Defendants did not have to believe Briggs

would have the PMQ attend a deposition based on the history of the case. The trial court

ruled, “So the Court is going to stand with its tentative, and impose the issue sanction,

which in this case is the same as a terminating sanction. It’s really nothing more, with

the Court finding that Creed-21 lacks standing. I’m not going to order the imposition of

additional monetary sanctions.”

       The order entering judgment dismissing the case was signed by the trial court and

filed on May 10, 2016. The order stated that the trial court had issued an issue sanction

against Creed-21 that it lacked standing in the action. The trial court denied any

additional monetary sanctions in favor of Wal-Mart. The Petition was denied in its

entirety and was dismissed. The Wildomar Defendants were to recover their costs. Wal-

Mart was to recover the $3,000 in sanctions already imposed on January 5, 2016. Creed-

21 filed a timely notice of appeal.

                                      DISCUSSION

       Creed-21 contends the “severe issue sanction” imposed by the trial court should

only be granted against a litigant who persists in outright refusal to comply with

discovery obligations. Creed-21 alleges that its counsel made numerous attempts to

calendar the deposition once his family emergency was resolved and turned over


                                             16
documentation. Moreover, the initial refusal to schedule the deposition was due to its

disagreement that discovery was warranted in the case, and once that issue was resolved,

counsel was faced with a family emergency that foreclosed being able to schedule the

deposition. Creed-21 claims that dismissal of the action required a showing of bad faith,

which was not supported by the evidence.

       “Code of Civil Procedure section 2025.450, subdivision (d) authorizes a trial court

to impose an issue, evidence, or terminating sanction under Code of Civil Procedure

section 2023.030 if a party or party-affiliated deponent ‘fails to obey an order compelling

attendance, testimony, and production.’ 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 (Doppes).)

Subdivision (d) of section 2023.030 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. [¶]

(2) An order staying further proceedings by that party until an order for discovery is

obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party.

[¶] (4) An order rendering a judgment by default against that party.”

       “The discovery statutes evince an incremental approach to discovery sanctions,

starting with monetary sanctions and ending with the ultimate sanction of termination.

‘Discovery sanctions “should be appropriate to the dereliction, and should not exceed that

which is required to protect the interests of the party entitled to but denied discovery.” ’


                                             17
[Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted:

continuing misuses of the discovery process warrant incrementally harsher sanctions until

the sanction is reached that will curb the abuse. ‘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.’ ” (Doppes, supra, 174 Cal.App.4th at p. 992, fn. omitted, citing Mileikowsky v.

Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280, overruled on other grounds in

Mileikowsky v. West Hills Hosp. and Medical Center (2009) 45 Cal.4th 1259.)

       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.)

       “The question before us ‘ “is not whether the trial court should have imposed a

lesser sanction; rather, the question is whether the trial court abused its discretion by

imposing the sanction it chose.” ’ ” (Liberty Mutual Fire Ins. Co. v. LcL Administrators,

Inc. (2008) 163 Cal.App.4th 1093, 1105-1106.)

       “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


                                              18
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.)

       Here, the first notice of deposition of the PMQ was issued on August 25, 2015, for

September 15, 2015. The Wildomar Defendants were concerned that Creed-21 was a

shell corporation that did not have standing to bring its action in Wildomar. Creed-21 did

not respond, even after Wal-Mart sent a meet and confer letter. Wal-Mart set a second

deposition for October 14, 2015. Creed-21 refused to have PMQ appear arguing no

discovery was appropriate in the action. Wal-Mart was forced to file a motion to compel.

       On January 5, the trial court rejected Creed-21’s arguments and ordered that it

produce the PMQ for deposition and ordered sanctions in the amount of $3,000. The

Wildomar Defendants again attempted to schedule the deposition. Creed-21 still did not

comply by either producing the PMQ or paying the sanction. Creed-21 sought relief,

which was denied on February 1, 2016, and it was ordered to conduct the deposition by

February 8, 2016. February 8 came and went without Creed-21 producing the PMQ or

paying the sanctions. Creed-21 claimed that Briggs was unavailable due to a family

emergency.

       The trial court reviewed the information provided regarding Briggs being

unavailable and felt the evidence was insufficient. It ordered that the deposition go

forward. Finally, Wal-Mart filed its motion for an issue sanction, which was granted by

the trial court based on the consistent refusal of Creed-21 to comply with court orders on

discovery.


                                            19
       Such determination was not a manifest abuse of the trial court’s discretion. Creed-

21 initially refused to submit to the discovery based on a legal challenge. However, after

that challenge was rejected, it failed to comply with the trial court’s orders. The

declaration by Briggs and the statements by Kim did not establish that Briggs was

unavailable. The issuance of a monetary sanction and two court orders did nothing to

convince Creed-21 to produce the PMQ for deposition. The trial court was forced to

impose the issue sanction since less severe sanctions did not produce compliance with the

discovery rules. (Doppes, supra, 174 Cal.App.4th at p. 992.)

       Creed-21 focuses on its actions taken once Briggs’s family emergency had

subsided. However, this ignores that Creed-21 was first given notice in September 2015

that the deposition was being requested. This also ignores that the trial court twice

ordered Creed-21 to produce the PMQ for a deposition. Moreover, there was no excuse

for why documents were not produced until Briggs returned to the office. The eleventh

hour attempt to avoid the dismissal of the action does not render the trial court’s decision

to dismiss the action an abuse of discretion.

       Defendant claims that outright dismissal requires bad faith relying on Deyo v.

Kilbourne (1978) 84 Cal.App.3d 771. However, this case preceded the Civil Discovery

Act of 1986. Only cases decided after that time are relevant here. (See Liberty Mutual

Fire Ins. Co. v. LcL Administrators, Inc., supra, 163 Cal.App.4th at p. 1106.)

       Based on the entire record of the discovery abuses by counsel for Creed-21, the

imposition of a terminating sanction did not constitute an arbitrary or capricious action.




                                                20
                                    DISPOSITION

      The judgment is affirmed. As the prevailing party, respondents are awarded their

costs on appeal.




                                                     MILLER
                                                                            Acting P. J.


We concur:


CODRINGTON
                               J.


SLOUGH
                               J.




                                          21
Filed 12/19/17
                             CERTIFIED FOR PUBLICATION

                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                        DIVISION TWO

CREED-21,

        Plaintiff and Appellant,                        E066367

v.                                                      (Super.Ct.No. RIC1504199)

CITY OF WILDOMAR,                                       The County of Riverside

        Defendant and Respondent;

WAL-MART REAL ESTATE BUSINESS
TRUST,

      Real Party in Interest and
Respondent.


THE COURT

       Requests having been made to this court pursuant to California Rules of Court, rule
8.1120, for publication of a nonpublished opinion filed in the above entitled matter on November
28, 2017, and it appearing that the opinion meets the standard for publication as specified in
California Rules of Court, rule 8.1105(c),

       IT IS ORDERED that said opinion be certified for publication pursuant to California
Rules of Court, rule 8.1105(b).

        CERTIFIED FOR PUBLICATION
                                                           MILLER
                                                                                   Acting P. J.

We concur:

CODRINGTON
                                   J.

SLOUGH
                                   J.
                                               1
