Yung v. Yodle, Inc

 

 

 

 

 

 

 

 

 

 

 

Filed 7/12/13  Yung v. Yodle, Inc. CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
>

KWONG HIU YUNG,   Plaintiff and Appellant,   v.   YODLE, INC., et al.,   Defendants and Respondents.

H037420      (Santa Clara County       Super. Ct. No. CV140572)

 

            Appellant
Kwong Hiu Yung appeals from an order dismissing his action with prejudice after
the trial court granted the motion by respondents Yodle, Inc. and Administaff
Companies II, LP for terminating sanctions and declaring him a vexatious
litigant.  We find no error and affirm.

 

I.  Factual and Procedural
Background

            Appellant
was employed by respondents from October 2007 until his employment was
terminated in February 2008.  Christina
Kotowski, respondents’ counsel, gave Yung three checks in the total amount of
$5,143.13 for various business expenses at a conference before the Labor
Commissioner in August 2008.  Appellant
refused to cash the checks.

In April 2009, appellant filed a
complaint for breach of contract, wrongful termination, misrepresentation, and
defamation against respondents.  In March
2010, appellant began representing himself.

            On January 7, 2011, respondents served
notice that appellant’s deposition was scheduled for February 9, 2011. 
Though appellant appeared for his deposition, it did not go
forward.  Appellant “rudely demanded”
that the videographer give him more tea and that the video camera be moved to
the other side of the room.  He
complained that he was the only person to be videotaped and refused to sit down
and be sworn for his deposition.  After
Kotowski told the court reporter and the videographer that she wanted to put a
statement on the record, the videographer began his prefatory statement on the
record.  However, appellant began
shouting in Cantonese to drown out his statement.  Appellant then grabbed the video camera and
ripped out the cables.  Though appellant
was repeatedly asked to leave, he refused to do so.  Building security was notified.  Two police officers from the San Francisco
Police Department also arrived at the scene. 
The videographer stated, “I’ve never had anything like this happen in 12
years.”

            Appellant
later filed misconduct charges against both the court reporter and respondents’
counsel with the Court Reporters Board of California and the California Bar
respectively.

            On February 23, 2011, respondents filed
motions to compel appellant’s deposition and for sanctions.  Following a hearing on April 29, 2011, the
trial court issued an order, which, among other things:  (1) compelled appellant’s deposition to be
taken no later than May 19, 2011, in the offices of respondents’ counsel in San
Francisco, (2) authorized security personnel to be present during the
deposition, and (3) ordered appellant to pay $3,112 in sanctions by no later
than May 19, 2011.  Appellant was also
prohibited from conducting any discovery until after his deposition was completed. 

            After the
tentative ruling was posted, Kotowski offered appellant four dates for his
deposition:  May 11, 13, 16, or 17.  Appellant rejected those dates on the ground
that he would be in Washington D.C. during that period.  The following day, however, he agreed to be
available for deposition on May 5, 2011. 
On April 29, 2011, respondents served notice that the video deposition
was scheduled for 9:30 a.m. on May 5, 2011, at the office of their counsel and
that a Cantonese interpreter would be provided. 
The letter accompanying the notice requested that appellant not arrive
before 9:20 a.m.

            At the time
of the parties’ agreement for scheduling of the deposition, appellant had a
pending motion to compel discovery and exclude from discovery his personnel
records related to a prior employment. 
Appellant was aware that tentative rulings were generally issued after
2:00 p.m. on the day before a scheduled hearing date.  The hearing on appellant’s motion was
scheduled for May 6, 2011.

            Beginning
on April 30, 2011, appellant and Kotowski began exchanging e-mails regarding
the scheduled deposition.  In his first
e-mail, appellant asserted that the April 29 order did not prevent him
from entering the building in which respondents’ counsel had its offices and he
needed more than 10 minutes “to prepare.” 
Appellant also demanded that the location of the deposition be changed
to San Jose and that he be allowed to choose the interpreter.  Kotowski responded that the order specified
that the deposition would occur in San Francisco.  She also explained that the security guard
did not arrive until 9:15 a.m. and suggested that appellant prepare in one of
the local coffee shops. 

            The
following day, appellant sent an e-mail stating that since he would be taking
public transportation to San Francisco, he could not guarantee that he would
arrive within the 10-minute window period between 9:20 a.m. and 9:30 a.m.  He then stated that the deposition “should”
be delayed from 9:30 a.m. to 10:00 a.m. 
When Kotowski reiterated that the deposition would begin at 9:30 a.m.,
appellant sent her a Caltrain schedule and stated that it would be difficult
for him “to time his arrival into a 10-minute window.”  He also stated that if she were unwilling to
delay the deposition by half an hour, the deposition should be
rescheduled.  Kotowski replied that he
was not being asked to time his arrival into San Francisco within a 10-minute
period, noted that he had not had a problem with the 9:30 a.m. start time when
they spoke at the courthouse, and warned him that if he did not appear on time
on May 5, she would ask the court to dismiss his lawsuit and to require him to
pay for the expenses of the second deposition.

            On May 2,
2011, appellant responded by pointing out that he had arrived for his first
deposition around 9:00 a.m. for the 9:30 a.m. deposition and that he could not
guarantee that he would arrive at 9:20 a.m. for the 9:30 a.m. deposition.  He concluded by stating that if she could
“not offer [him] 30 minutes of leeway, then [he could] not agree to such
unreasonable conditions.”  Later that
afternoon, appellant sent another e-mail in which he stated that if she was
“unwilling to delay the official start of the deposition by half an hour” to
accommodate his commute, then she should cancel the deposition.  He also stated that “[u]nless a firm
agreement is reached by Tuesday 05/03, we should schedule for another
date.”  The next day, Kotowski responded
that the deposition would begin at 10:00 a.m., and that there would be “no
further changes to this deposition.” 

            On May 3,
2011, appellant sent an e-mail to Kotowski, which stated that the deposition
would occur on May 5, 2011, he would “try his best to arrive between
09:20—09:30 but [could] only guarantee starting at 10:00.  Plan to start the deposition in earnest at
09:45.  In any event, the plaintiff shall
be allowed to enter [counsel’s] office 09:20 to prepare for the deposition and
to acclimate to the deposition setup. 
[¶]  Since the Santa Clara
Superior Court announces tentative rulings for discovery motions 14:00 Thursday
05/05, let’s schedule for a half-hour break at 14:00.  Reply to confirm that there will be a
half-hour break at 14:00.”

            At 6:22
a.m. on May 4, 2011, appellant sent an e-mail to Kotowski that stated:  “Since you failed to confirm a half-hour
break at 14:00 Thursday 05/05, please cancel deposition.”  He also indicated that he did not want to be
“trapped in a full-day deposition past 14:00 because oral arguments for
tentative rulings of discovery motions have to [be] requested between 14:00 and
16:00 Thursday.”  Kotowski responded the
same day, and stated that the “deposition [would] go forward tomorrow at 10:00
a.m. as scheduled.  Adequate time will be
provided for both parties to review the tentative ruling once it is
posted.”  Appellant then sent an e-mail
in which he cancelled the deposition on the ground that Kotowski had failed to
finalize the details of the deposition by May 3, 2011.  

            On May 5,
2011, appellant did not appear for his deposition.  On the same day, a ruling tentatively denying
his motion to exclude his personnel records from discovery was posted.  Appellant informed Kotowski that afternoon
that he intended to contest the tentative ruling the following day.  Kotowski appeared at the hearing, but appellant
did not.  The tentative ruling was
adopted. 

            On May 12,
2011, appellant e-mailed Kotowski and informed her that he would be returning
from Washington D.C. on May 18 and would be available for his deposition on May
19.  Kotowski responded by stating that
she intended to proceed with a motion for terminating sanctions. 

            On May 19,
2011, appellant sent an e-mail to Kotowski and stated that respondents could
deduct the amount of the sanctions awarded to them from the amount that
respondents owed him and that respondents would then owe him $2,064.13.  Appellant had not attempted to cash the three
checks given to him by Kotowski in August 2008 until May 6, 2011.  By that time, however, the accounts
apparently had been closed.

            On May 23,
2011, respondents filed motions for terminating sanctions and to declare
appellant a vexatious litigant. 
Appellant filed opposition to the motions.  Following a hearing, the trial court granted
the motion for terminating sanctions, dismissed the action with prejudice, and
declared appellant a vexatious litigant. 


            Appellant
then filed a motion to set aside the order dismissing the action pursuant to
Code of Civil Procedure section 473, subdivision (b).  Appellant argued that his violation of the
April 29 order was “was not willful, but due to inadvertence, surprise, and/or
excusable neglect.”  Appellant also
sought attorney’s fees and costs.  The
trial court denied the motion as well as the request for attorney’s fees and
costs. 

 

II.  Discussion

>A.     > Discovery Sanctions

>1.      >Standard of Review

            This court
reviews a trial court’s selection of a particular discovery sanction for abuse
of discretion.  (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988.)  “We view the entire record in the light most
favorable to the court’s ruling, and draw all reasonable inferences in support
of it.  [Citation.]  We also defer to the trial court’s
credibility determinations. 
[Citation.]”  (>Stephen Slesinger, Inc. v. Walt Disney Co.
(2007) 155 Cal.App.4th 736, 765 (Slesinger).)  A sanction order is “ ‘ “subject to reversal only for manifest abuse exceeding the
bounds of reason.” ’ ”  (Liberty
Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th
1093, 1102.)  However, a sanctions order
that was “designed not to accomplish the purposes of discovery but designed to
punish” a party may implicate constitutional due process by depriving the party
of the right to pursue or defend a lawsuit on its merits.  (Caryl
Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305 (>Caryl Richards).)  Under these circumstances, our review is de
novo.  (Ibid.)

 

 

>2. 
Terminating Sanctions

            “The
purpose of the discovery statutes is to enable a party to obtain evidence under
the control of his adversary in order to further the efficient and economical
disposition of a lawsuit.”  (>Deyo v. Kilbourne (1978) 84 Cal.App.3d
771, 793.)  The court may impose
sanctions “against anyone engaging in conduct that is a misuse of the discovery
process.”  (Code Civ. Proc., § 2023.030.) 
A misuse of the discovery process includes disobeying a court order to
provide discovery.  (Code Civ. Proc., § 2023.010, subd. (g).)  Thus, terminating sanctions are authorized
where a party has failed to obey an order compelling attendance at a
deposition. (Code Civ. Proc., § 2025.450, subd. (d); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967,
991.)  “name=I166F72F0020C11DFB662F5E23CBEE809>name=I166E1365020C11DFB662F5E23CBEE809>The
court may impose a terminating sanction byname=I16700F30020C11DFB662F5E23CBEE809>name=I166E1368020C11DFB662F5E23CBEE809> . .
. [¶] . . . [¶] . . . [a]n order dismissing the action, or any part of the
action, of that party.”  (Code Civ. Proc.,
§ 2023.030, subd. (d)(3).)  “[T]he trial court may impose sanctions that ‘ “ ‘are suitable and necessary to enable the party seeking discovery to obtain
the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed
not to name="SDU_332">accomplish
the objects of the discovery but to impose punishment.’ ” ’ 
[Citations.]”  (>Rail Services of America v. State Comp. Ins.
Fund (2003) 110 Cal.App.4th 323, 331-332 (Rail Services), italics omitted.)

            Here,
appellant’s conduct prevented his deposition from going forward on February 9,
2011.  The trial court then issued the
April 29 order, which compelled appellant’s deposition to be taken no later
than May 19, 2011.  Respondents offered
appellant four dates, which he rejected. 
After appellant agreed to appear on May 5, 2011, respondents noticed his
deposition.  Appellant did not serve
objections to his second deposition notice and he did not move for a protective
order from the court.  (Code Civ. Proc., § 2025.410, subds. (a) [any error in
deposition notice is waived unless objections are served three calendar days
prior to the deposition], (c) [party may also seek order staying taking of
deposition].)  Thus, the deposition
notice was effective to require appellant to appear on May 5, 2011.  (Code Civ. Proc., § 2025.280, subd. (a).) 
Even assuming that he had a valid reason for refusing to appear at his
second scheduled deposition, he waived the issue.  Since there is substantial evidence that
appellant misused the discovery process by disobeying a court order that his
deposition be taken, the trial court did not abuse its discretion in imposing
terminating sanctions.

            Relying on >Caryl Richards, supra, 188 Cal.App.2d 300, Newland
v. Superior Court (1995) 40 Cal.App.4th 608, 610 (Newland), McArthur v. Bockman
(1989) 208 Cal.App.3d 1076, 1078 (McArthur),
Rail Services, supra, 110 Cal.App.4th 323, Slesinger,
supra, 155 Cal.App.4th 736, and >Thomas, Head & Greisen Employees Trust
v. Buster (9th Cir. 1996) 95 F.3d 1449, 1458 (Buster), appellant contends that he is entitled to de novo review
because the order dismissing his action with prejudice violated his federal and
state constitutional right to due process of law and is reversible per se.  None of these cases supports appellant’s
position that he has been deprived of due process.

            In >Caryl Richards, supra, 188 Cal.App.2d 300, the plaintiff sought damages for
injuries allegedly caused by the defendant’s hair spray.  (Id.
at p. 301.)  Despite repeated
interrogatories, the defendant refused to disclose the chemical composition of
its hair spray.  (Id. at p. 302.)  The trial
court then issued an order requiring the defendant to provide the requested
information.  (Id. at pp. 302-303.)  After
the defendant provided some information, the trial court concluded that the
information was insufficient to allow the plaintiff to determine whether the
hair spray would injure a person’s eyes and entered an order striking
defendant’s answer and ordering that its default be entered.  (Id.
at p. 303.)  Caryl Richards reasoned: 
“While under the statute the court undoubtedly has the power to impose a
sanction which will accomplish the purpose of discovery, when its order goes
beyond that and denies a party any right to defend the action or to present
evidence upon issues of fact which are entirely unaffected by the discovery
procedure before it, it not only abuses its discretion but deprives the
recalcitrant party of due process of law.” 
(Id. at p. 305.)  In contrast to Caryl Richards, here, appellant did not refuse to respond to one
discovery request regarding a limited area, he refused to be deposed about
anything.  Thus, the terminating sanction
order in the present case serves the purposes of discovery since there are no “issues
of fact which are entirely unaffected by” appellant’s refusal to be
deposed.  (Ibid.)

            >Newland, supra, 40 Cal.App.4th 608, held that the trial court abused its
discretion in ordering terminating sanctions based solely on the failure to pay
a monetary sanction.  (>Id. at p. 610.)  Here, appellant also disobeyed a court order
to have his deposition taken.

            In >McArthur, supra, 208 Cal.App.3d 1076, the plaintiffs brought an action
seeking compensatory and punitive damages for breach of contract and
fraud.  (Id. at p. 1079.)  After much
discovery had been completed, the trial court granted the plaintiffs’ motion to
take the defendants’ deposition as to their financial condition.  (Id.
at pp. 1079-1080.)  When the defendants
did not appear at their deposition, the plaintiffs’ motion for terminating
sanctions was granted.  (>Id. at p. 1080.)  McArthur
reasoned:  “ ‘[T]he 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.’  [Citations.]  [¶] . . . [¶] . . .  The only possible prejudice suffered by the
[plaintiffs] as a result of the [defendants’] failure to appear for these
specific depositions was the risk that at trial they would be unable to obtain
a punitive damage award commensurate with the [defendants’] actual wealth.  This prejudice could have been eliminated,
however, by sanctions short of striking the [defendants’] answer and
cross-complaint.”  (Id. at p. 1081.)  Thus, >McArthur held that the trial court had
abused its discretion in issuing terminating sanctions.  (Id.
at pp. 1078, 1081.)  Unlike the
circumstances in McArthur, if
respondents had obtained appellant’s deposition and “ ‘it had been completely favorable to [their] cause,’ ” respondents would have obtained
appellant’s binding admissions that would have defeated his claims of breach of
contract, misrepresentation, wrongful termination, and defamation.  (Id.
at p. 1081.)  Thus, the only way to
eliminate the prejudice to respondents in the present case was the dismissal of
appellant’s lawsuit.  (See >Rail Services, supra, 110 Cal.App.4th 323, 331-332 [the trial court did not abuse
its discretion in dismissing a cause of action after the plaintiff refused to
provide discovery as to that cause of action].)

            In >Slesinger, supra, 155 Cal.App.4th 736, the plaintiff hired an investigator,
who obtained the defendant’s confidential documents by breaking into the
defendant’s offices and secure trash receptacles.  (Id.
at p. 740.)  The investigator then
provided the documents to the plaintiff and its attorneys, who reviewed them
but did not keep any records of the documents. 
(Ibid.)  The plaintiffs also withheld information
about the investigator’s activities from the defendant and the court for many
years.  (Ibid.)  Slesinger held that a trial court has “inherent power to issue a
terminating sanction when a plaintiff’s misconduct is deliberate, is egregious,
and makes lesser sanctions inadequate to ensure a fair trial” and that the
trial court did not abuse its discretion in dismissing the plaintiff’s
case.  (Ibid.)  Though appellant’s
conduct in the case before us was not as egregious as that in >Slesinger, it involved a deliberate
violation of the April 29 order and lesser sanctions are inadequate to ensure a
fair trial for respondents.

            In >Buster, supra, 95 F.3d 1449, the district court imposed civil contempt and
contempt sanctions on the defendants.  (>Id. at p. 1458.)  Buster
rejected the defendants’ due process challenge on the ground that they had
ample notice and an opportunity to oppose the imposition of contempt
sanctions.  (Ibid.)  Similarly, here,
appellant’s due process challenge fails. 
He had notice of respondents’ motion for terminating sanctions, filed
opposition, and made his arguments at a hearing before the terminating
sanctions were imposed.

            In
reviewing the superior court’s ruling de novo, we find no merit to appellant’s
contention that he was deprived of due process. 
Appellant contends that the superior court disregarded evidence that he
intended to comply with the order but respondents refused to schedule his
deposition on May 19.  Thus, he claims
that the superior court issued the dismissal order solely to punish him for
actions unrelated to the discovery order. 
We disagree.  As previously
stated, the parties agreed on a date for the deposition within the 20-day
period set forth in the order.  Appellant
neither served objections to his deposition notice nor moved for a protective
order.  Thus, appellant defied a court
order by failing to appear at his second scheduled deposition.  Respondents were not required to accommodate
appellant’s very belated request to change the date of the deposition.href="#_ftn1" name="_ftnref1" title="">[1]  “The court is not required to have infinite
patience in these situations.  A party
who is unwilling to . . . perform[] the obligations of litigation with
diligence should not be surprised when the right to proceed is lost.”  (Jerry’s
Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069.)  There is no evidence to support appellant’s
claim that the trial court considered factors beyond the scope of the discovery
order.

            Appellant
also argues that the trial court misinterpreted the language of the order. 

            The April
29, 2011 order states in relevant part: 
“Within 20 calendar days from this order, Plaintiff shall appear and
testify under oath for deposition by Defendants at the offices of Defendants’
counsel, One Embarcadero Center, Suite 2340, San Francisco, California
94111.  Defendants may videotape
Plaintiff’s deposition.”

            Appellant
claims that “[n]othing in the [April 29 order] required [him] to sit for his
deposition on May 5th, to have his deposition taken on the very first date he
agreed to sit for his deposition, or to refrain from cancelling a scheduled
deposition at any time.”  This claim is
meritless.  The trial court’s
interpretation of the order was correct. 
By disregarding a valid deposition notice within the 20-day period to
which he served no objections and sought no protective order from the court,
appellant failed to obey the April 29 order.  


            In his
reply brief, appellant argues that the notice for his deposition on May 5 was
facially defective because there was no evidence that he had agreed to be
served by electronic mail.  This issue
has been forfeited because appellant failed to serve written objections on this
ground.  (Code Civ. Proc., § 2025.410, subd. (a).)

name=I16703640020C11DFB662F5E23CBEE809>name=I166E3A70020C11DFB662F5E23CBEE809>3.  Monetary Sanctions

            The trial
court may also impose monetary sanctions. 
(Code Civ. Proc., § 2023.030,
subd. (a).)

            Relying on >Newland, supra, 40 Cal.App.4th 608, appellant asserts that he “acted within
his right when he directed Respondents to deduct the money he owed them from
the amount they had previously admitted they owed him.”  Newland
is distinguishable from the present case. 
In Newland, one of the
defendants sought to offset the $750 in discovery sanctions imposed on him by
the trial court against the $67.06 in appeal costs awarded to him by the
appellate court.  (Id. at pp. 611-612.)  >Newland stated:  “The trial court was in error in concluding
that those costs were a matter for appellate court enforcement.  They were, instead, ‘a matter solely for
consideration in the lower court.’ 
[Citations.]”  (>Id. at p. 616.)  Thus, Newland
held that the offset was appropriate.  (>Ibid.) 
However, here, appellant was seeking to offset checks that respondents
had given him for reimbursement of business expenses at a conference before the
Labor Commissioner in August 2008.  For
unknown reasons, appellant did not attempt to cash these checks until May
2011.  Unlike in Newland, these costs were not a matter for consideration by the
trial court in determining whether appellant had complied with the April 29
order.  Accordingly, the trial court did
not err in finding that appellant failed to pay the monetary sanctions.

 

B.   
 Vexatious Litigant

            Appellant
contends that the trial court erred in declaring him a vexatious litigant.  We disagree.

            A vexatious
litigant is defined as a person who, “while acting in propria persona,
repeatedly files unmeritorious motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other tactics that are frivolous or solely
intended to cause unnecessary delay.” 
(Code Civ. Proc., § 391, subd.
(b)(3).)

            “The trial
court exercises its discretion in determining whether a person is a name=SearchTerm>vexatious litigant.  Review of the order is accordingly limited
and the Court of Appeal will uphold the ruling if it is supported by
substantial evidence.  Because the trial
court is best suited to receive evidence and hold hearings on the question of a
party’s vexatiousness, we presume the order declaring a litigant vexatious is correct and imply
findings necessary to support the judgment. 
[Citations.]”  (>Golin v. Allenby (2010) 190 Cal.App.4th
616, 636.)  

            Here, as
appellant concedes, he filed two unmeritorious ex parte applications and one
motion.  First, he filed an improper ex
parte application to exclude his personnel records obtained from a prior
employer.  The application was denied
because he failed to satisfy the requirements for ex parte relief.  He then brought a noticed motion in which he
argued that his employment records were irrelevant and “private.”  The trial court denied the motion.  Second, appellant filed an improper ex parte
application to compel further responses to form interrogatories.  He sought the contact information of
witnesses, who were officer, directors, managing agents, or employees of
respondents, even though respondents had indicated that they could be contacted
through respondents’ counsel.  He also
sought details and documentation regarding respondents’ insurance policies even
though no trial date or mandatory settlement conference had been set.  After appellant brought a noticed motion, it
was also denied on substantive grounds. 
Third, though appellant now concedes he acted “inappropriately” at his
deposition in February 2011, he filed misconduct charges against both
respondents’ counsel and the court reporter with the California Bar and the
Court Reporters’ Board of California respectively.  None of appellant’s filings had any “ ‘reasonable probability of success’ ” (Morton
v. Wagner (2007) 156 Cal.App.4th 963, 972), and thus they were frivolous or
solely intended to cause unnecessary delay. 


            Appellant
also conducted unnecessary discovery.  He
attempted to depose 11 individuals simultaneously in Fairfax, Virginia.  However, the present litigation had no
connection to Fairfax, Virginia, and the majority of the individuals identified
by appellant lived in the New York metropolitan area and one lived in
Texas.  Appellant also served form
interrogatories on 10 individuals who were not parties to the present
action.  Appellant claims that this
discovery was propounded due to his limited understanding of discovery
rules.  However, “ ‘ “[w]hen a litigant is appearing in propria persona, he is
entitled to the same, but no greater, consideration than other litigants and
attorneys [citations].  Further, the in
propria persona litigant is held to the same restrictive rules of procedure as
an attorney [citation].” 
[Citations.]’  [Citation.]  In other words, when a litigant accepts the
risks of proceeding without counsel, he or she is stuck with the outcome, and
has no greater opportunity to cast off an unfavorable judgment than he or she
would if represented by counsel.”  (>Burnete v. La Casa Dana Apartments
(2007) 148 Cal.App.4th 1262, 1267.) 
Thus, there was substantial evidence to support the trial court’s
finding that appellant conducted frivolous discovery or solely intended to
cause unnecessary delay.

            Moreover,
appellant engaged in other conduct that supported the trial court’s finding
that he was a vexatious litigant. 
Regarding the first deposition, appellant’s conduct was so disruptive
that building security and police officers arrived to ensure that he left the
building.  Appellant argues that the
trial court could not have relied on this conduct because he had “already been
punished.”  However, appellant never
complied with the April 29 order that he be deposed or that he pay monetary
sanctions.

            Regarding
his failure to comply with the April 29 order, appellant first asserts that he
could not afford to pay respondents and thus he authorized them to deduct the
amount of money he owed them from the amount that they owed him.  The trial court could reasonably infer that
this assertion was false since appellant then hired counsel to bring a
frivolous motion to set aside the August 3 order and for sanctions.  Moreover, as previously discussed, the April
29 did not authorize appellant to satisfy his sanctions obligation in this
manner.

            Appellant
also argues that he reasonably changed his mind about being deposed on May 5,
2011, because respondents refused to permit him to take a 30-minute break at
2:00 p.m.  This argument is without
merit.  As previously discussed,
appellant waived this issue because he failed to file objections in a timely
manner.  Moreover, appellant
misrepresents the record.  Respondents’
counsel assured him that there would be adequate time for both parties to
review the tentative ruling after it was posted. 

            In sum,
there was substantial evidence to support the trial court’s finding that
appellant was a vexatious litigant within the meaning of Code of Civil
Procedure section 391, subdivision (b)(3).

 

>III. 
Disposition

            The order is
affirmed.

 

 

 

 

 

                                                                        _______________________________

                                                                        Mihara,
J.

 

 

 

WE CONCUR:

 

 

 

 

 

 

______________________________

Premo, Acting P. J.

 

 

 

 

 

 

______________________________

Márquez, J.