Canyon Theatre Guild v. Elroy

Filed 10/23/07 Canyon Theatre Guild v. Elroy CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles Superior County. Howard J. Schwab, Judge. Affirmed

Brian Elroy, in pro. per., for Appellant.

William R. Lively & Associates and William R. Lively, for Respondent.

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Canyon Theatre Guild filed a lawsuit against Brian Elroy, the general contractor employed to remodel its property. Because defendant failed to comply with discovery requests, issue sanctions were entered. The court later entered judgment based on the stipulation of the parties. Defendant now appeals the issue sanctions, the striking of his cross-complaint, denial of a continuance and the stipulated judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2000, Brian Elroy doing business as B.C. Wise Design & Construction (Elroy) entered into a contract with Canyon Theatre Guild (Canyon) to remodel its property. In 2001, Canyon filed a complaint against Elroy alleging breach of contract, fraud and other claims. Elroy filed a cross-complaint, which was dismissed, without prejudice, by his attorney.^[1]

Canyon sent Elroy interrogatories to which he did not serve a response. Consequently, Canyon filed a motion to compel responses to the interrogatories as well as a motion to compel responses to demands for production of documents. Both motions were granted, but Elroy again failed to respond. Canyon then filed a motion for issue sanctions which the court granted in July 2002, deeming the facts alleged in the interrogatories established against Elroy. These facts included: Elroy entered into a contract which he did not fully perform; Canyon did not excuse, frustrate, or prevent his performance; the job was not substantially completed; and Canyon did not breach the contract.

Elroy contends that he was unaware of the issue sanctions until January 2003. At that time, he filed an ex parte application requesting leave to file a motion to set aside the issue sanctions; the court denied the application.

In November 2004, two years after his initial cross-complaint was dismissed and he had been sanctioned, Elroy re-filed his cross-complaint. The court granted Canyons motion to strike, based on the issue sanctions. In September 2005, Elroy filed motions to vacate certain orders, but failed to appear at the hearing; the court denied the motions.^[2]

As a result of the issue sanctions, the only issue left to determine on the day of trial was damages. Before the trial began, the parties reached a settlement which they entered in open court. Among the elements of the stipulated judgment was judgment for the plaintiff for breach of contract against Brian Elroy and B.C. Wise Design & Construction for $124,000, payable at $40 a month on the 15th of each month. If a payment was not made within 30 days notice was to be sent to Elroy, with the remaining balance due 30 days after the notice. Additionally, the fraud action against Elroy was dismissed, and attorney fees and costs were waived. Objections to the stipulation were restricted to form.

Elroy later filed an objection to the stipulated judgment, which is not included in this record. The stipulated judgment was entered on December 19, 2005. Elroy timely filed this appeal.

DISCUSSION

Appellant contends that the trial court erred by granting issue sanctions and denying his motion to vacate, striking his cross-complaint, allowing his counsel to withdraw and denying a continuance to obtain another attorney, and by entering judgment against him. We affirm.

I. Issue Sanctions

Code of Civil Procedure section 2023.030, subdivision (b) states that a court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. A trial court has broad discretion to impose discovery sanctions, and the decision to impose sanctions will only be reversed for arbitrary, capricious, or whimsical action. (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) We review for abuse of discretion. (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.)

Sanctions should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793, superseded by statute on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.)

Elroy failed to respond to interrogatories, either before or after the motion to compel was granted. Elroy claims the resulting issue sanctions were excessive because the interrogatories related only to issues raised by his cross-complaint and therefore should not affect the claims raised in the complaint. Elroy relies on Wilson v. Jefferson,in which the Court of Appeal found that the discovery sanctions imposed by the trial court were excessive. (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 954.) In that case the court order compelling production of documents related only to the affirmative defense. However, the default judgment addressed the entire case. (Id. at p. 958.) As Jeffersons conduct related only to his affirmative defense, which amounted to only a portion of the default judgment, the appellate court found the default judgment to be excessive. (Id. at pp. 958-959.)

Although the sanctions in this case were based on interrogatories relating to the cross-complaint, the interrogatories were designed to elicit facts that had independent legal significance related to the underlying complaint, and the sanctions imposed were limited to the issues raised in the interrogatories. Unlike the default judgment against Jefferson, these sanctions were constrained to the issues related to the misuse of discovery. Consequently, the sanctions were within the trial courts discretion.

Elroy claims to have submitted a motion to vacate the issue sanctions in 2005; he has failed to provide the motion in the record. The party seeking to challenge an order on appeal has the burden to provide an adequate record to assess error. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) [I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed. (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) Accordingly, this claim is waived.

II. Appellants Cross-Complaint

Elroy asserts that the trial court erred when it struck his cross-complaint because his lawyer had dismissed it without his consent. We review for abuse of discretion. (United States Nat. Bank v. Bank of America (1963) 214 Cal.App.2d 74, 76.)

Dismissal of a cross-complaint with prejudice affects a clients substantial rights and therefore requires the consent of the client. (Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1236.) Elroys cross-complaint was dismissed without prejudice, permitting a re-filing after timely obtaining leave of court. However, Elroy re-filed the cross-complaint without seeking leave of court, two years after his lawyer dismissed it, and close to the date of trial. Furthermore, many facts alleged in the cross-complaint were effectively barred by the issue sanctions. Under these circumstances, we do not find that the trial court erred by striking Elroys re-filed cross-complaint with prejudice.

III. Counsels Withdrawal and Courts Denial of Continuance

After the discovery sanctions were issued, Elroys attorney withdrew from the case. Elroy then retained Darrin Wessel, who later withdrew. Appellant contends that the trial court erred by permitting Wessel to withdraw and denying a continuance to find another attorney. However, the record does not contain Elroys request for a continuance. As a result, this claim is waived. (Rancho Santa Fe Assn. v. Dolan-King, supra, 115 Cal.App.4th 28, 46; Mountain Lion Coalition v. Fish & Game Com., supra, 214 Cal.App.3d at p. 1051, fn. 9.)

IV. Stipulated Judgment

Elroy also contends that he entered into the stipulated judgment under duress, making the stipulated judgment invalid. In general, a party cannot appeal from a judgment to which he stipulated because he consented and therefore cannot be considered aggrieved. (Papadakis v. Zelis (1991) 230 Cal.App.3d 1385, 1387-1388.) While a stipulated judgment may be appealed if entered into under duress on the theory that there was no valid consent (In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1045), an appellate court cannot set aside a stipulated judgment on appeal when relief was not sought from the trial court. (Lawler v. Bannerman (1970) 8 Cal.App.3d 893.) While both parties state that Elroy filed an Objection to Stipulation for Order of Judgment and Judgment, it is not included in the record. Due to the absence of this material in the record, we cannot review the objection, its basis, the arguments raised, or the reasons for denial. Accordingly, we must affirm the stipulated judgment.^[3] (Rancho Santa Fe Assn. v. Dolan-King, supra, 115 Cal.App.4th at p. 46; Mountain Lion Coalition v. Fish & Game Com., supra, 214 Cal.App.3d at p. 1051, fn. 9.)

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J. WOODS, J.

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^[1] Much of the procedural history relies on the Los Angeles Superior Court Civil Case Summary; in many instances, the underlying filings are not part of the record before this court.

^[2] The motions are not contained in the record on appeal and are not before this court.

^[3] Appellant also contends that the trial judge was prejudiced against him in violation of canon 3B(5) of the California Code of Judicial Ethics, stating: A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (1) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or (2) sexual harassment. There is no evidence that the judge acted with bias or prejudice against appellant; his decisions against appellant were supported by the law and the facts of the case.