Mack v. CitiMortgage, Inc. CA2/6 ( 2015 )

Filed 9/22/15 Mack v. CitiMortgage, Inc. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KEITH MARTIN MACK, 2d Civil No. B260058
(Super. Ct. No. 56-2012-00413175-CU-
Plaintiff and Appellant, OR-VTA)
(Ventura County)
v.
CITIMORTGAGE, INC.,
Defendant and Respondent.
Keith Martin Mack appeals from an order dismissing his wrongful
foreclosure action based on the willful failure to comply with two discovery orders.
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(Code Civ. Proc., § 2023.030, subd. (d)(3).) Appellant also appeals from an order
denying reconsideration of his peremptory challenge to the trial judge (§ 170.6). We
affirm the terminating sanctions order. The appeal from the order denying
reconsideration is dismissed because it is not an appealable order. (§ 1008, subd.
(g).)
Procedural History
In 2011, appellant's house was sold at a trustee's sale after appellant
defaulted on a $147,000 promissory note secured by a deed of trust. Appellant sued
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All statutory references are to the Code of Civil Procedure.
the lender's assignee, CitiMortgage Inc. (CMI), on quiet title, contract, tort, and
statutory theories.
On November 14, 2013, CMI served four discovery requests: a request
for admissions, a request for production of documents, form interrogatories, and
special interrogatories. Appellant failed to respond to the discovery and was mailed a
meet and confer letter. On January 10, 2014, appellant served written objections to
the request for admissions and request for production of documents.
CMI filed a motion to compel discovery on the form and special
interrogatories, and a separate motion to compel further responses on the request for
documents and request for admissions. On March 5, 2014, Ventura County Superior
Court Judge Vincent O'Neill ordered appellant to respond, without objection, to the
discovery by March 25, 2014.
Appellant served written objections but never responded to the
discovery. CMI brought a motion for terminating sanctions and a motion to compel
further discovery responses. On July 1, 2014, Judge O'Neill granted the motion to
compel further discovery responses. Appellant was ordered to respond to the
discovery, without objection, by July 21, 2014 and pay $1,755 sanctions.
Appellant again failed to respond to the discovery. On August 21,
2014, CMI filed a motion for terminating sanctions or, in the alternative, evidentiary
sanctions. Before the hearing on the motion, appellant filed an affidavit to disqualify
Judge O'Neill pursuant to section 170.6. Ventura County Superior Court Judge
Frederick Bysshe denied the peremptory challenge because it was untimely.
The motion for terminating sanctions was argued on September 23,
2014. Judge O'Neill granted the motion, finding that appellant willfully failed to
comply with the March 5, 2014 and July 1, 2014 discovery orders. Appellant was
ordered to pay $1,625 sanctions.
Before the judgment of dismissal was entered, appellant filed a motion
for reconsideration on his section 170.6. affidavit to disqualify Judge O'Neill. (§
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1008.) Denying the motion, Judge Bysshe found that the peremptory challenge was
untimely because Judge O'Neill made a number of rulings in the case dating back to
June 2013.
Motion for Reconsideration
It is settled that an order denying a motion for reconsideration is not
appealable, even when based on new facts or law. (Powell v. County of Orange
(2011) 197 Cal. App. 4th 1573, 1576-1577.) "[I]f the underlying order that was the
subject of reconsideration is appealable, the denial of reconsideration is reviewable as
part of the appeal from that underlying order." (§ 1008 subd. (g); Young v. Tri-City
Healthcare Dist. (2012) 210 Cal. App. 4th 35, 51.) Here the order denying appellant's
peremptory challenge is non-appealable. Although the order may be reviewed by
writ of mandate (§ 170.3, subd. (d)), the 10-day time period to seek writ review has
come and gone. (People v. Hull (1991) 1 Cal. 4th 266, 268; People v. Panah (2005)
35 Cal. 4th 395, 444.)
Appellant argues that he was denied the due process right to an
impartial trial judge. To prevail on the claim, appellant must show actual bias which
is absent here. (Today's Fresh Start, Inc. v. Los Angeles County Office of Education
(2013) 57 Cal. 4th 197, 219.) None of Judge O'Neill's or Judge Bysshe's rulings
reflect actual or personal bias. The record shows that the peremptory challenge was
filed two years after the case was assigned to Judge O'Neill's courtroom. (See e.g.,
National Financial Lending, LLC v. Superior Court (2013) 222 Cal. App. 4th 262, 270
[section 170.6 disqualification affidavit must be filed within 15 days of civil
assignment to all purpose trial judge or before judge rules on a contested fact].)
Judge O'Neill ruled on a motion to set aside a default, a demurrer, a motion to strike,
a motion for judgment on the pleadings, discovery motions, and a motion to continue
trial before appellant filed the section 170.6 peremptory challenge. "The mere fact
that the trial court issued rulings adverse to [appellant] on several matters in this case,
even assuming one or more of those rulings were erroneous, does not indicate an
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appearance of bias, much less demonstrate actual bias. [Citation.]" (Brown v.
American Bicycle Group, LLC (2014) 224 Cal. App. 4th 665, 674.) Appellant makes
no showing that he was denied due process or that the order denying reconsideration
is appealable.
Terminating Sanctions Order
With respect to the termination order, the trial court possesses broad
discretion in imposing discovery sanctions. (Do It Urself Moving & Storage, Inc. v.
Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36.) Appellant must show
that the order is arbitrary or capricious and resulted in a miscarriage of justice. (Ellis
v. Toshiba America Information Systems, Inc. (2013) 218 Cal. App. 4th 853, 878.)
Appellant willfully failed to comply with the discovery orders after
monetary sanctions were imposed and he was granted more than six months to
respond to the discovery. " '[A] persistent refusal to comply with an order for the
production of evidence is tantamount to an admission that the disobedient party really
has no meritorious claim. . . .' [Citation.]" (Juarez v. Boy Scouts of America, Inc.
(2000) 81 Cal. App. 4th 377, 390.) Where the discovery violation is willful, preceded
by a history of discovery abuse, and the evidence shows that less sanctions will not
produce compliance with the disclosure rules, the trial court is justified in ordering
terminating sanctions. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75
Cal. App. 4th 486, 496-498; Mileikowsky v. Tenet Healthsystem (2005) 128
Cal. App. 4th 262, 279-280.)
Appellant argues that dismissal of the action violates his due process
rights. Appellant, however, was repeatedly warned that his complaint would be
dismissed if he did not respond to the discovery. As a civil litigant, appellant had no
due process right to thwart discovery or disregard the court's discovery orders. "The
purpose of the discovery rules is to 'enhance the truth-seeking function of the
litigation process and eliminate trial strategies that focus on gamesmanship and
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surprise.' [Citation.]" (Juarez v. Boy Scouts of America, Inc., supra, 81 Cal. App. 4th
377, 389.)
The judgment (terminating sanctions order) is affirmed. The appeal
from the order denying reconsideration is dismissed because it is not an appealable
order. (§ 1008, subd. (g).) CMI is awarded costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Vincent O'Neill, Judge
Superior Court County of Ventura
______________________________
Keith Martin Mack, in pro per, Plaintiff and Appellant.
Andrew A. Bao, Meagan S. Tom, Carrie Afton Stringham; Wolfe &
Wyman, for Defendant and Respondent.
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