Education Resources Inst. v. Albert

Filed 6/14/07 Education Resources Inst. v. Albert CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert D. Monarch, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed as modified.

Lenore Albert, in pro. per., for Defendant, Cross‑complainant, and Appellant, Lenore Albert.

Creditor Iustus et Remedium, LLP and Aimee R. Morris for Plaintiff, Cross‑defendant, and Respondent, The Education Resources Institute.

Nokes & Quinn, Thomas P. Quinn, Jr.; Kilpatrick Stockton, G. John Cento; King & Spalding and Andrew H. Valli, for Cross‑defendant and Respondent, Equifax Information Services.

* * *

Lenore Albert appeals from a judgment in favor of The Education Resources Institute (TERI), Creditor Iustus et Remedium, LLP (CIR), and Equifax Information Services, LLC (Equifax), in this action involving TERIs attempts to collect on Alberts three defaulted law school student loans. TERI filed the instant action to collect on the loans. Largely contending the student loans were discharged by her bankruptcy, Albert cross‑complained against TERI and its attorney/debt collection service, CIR, and Equifax, alleging violations of the Consumer Credit Reporting Agencies Act (Civ. Code,  1785.1 et seq. (CCRAA)), and various common law torts. She raises numerous contentions on appeal, none of which have merit. We order the judgment modified to more accurately reflect the actual amount awarded TERI and in all other respects affirm.

FACTS AND PROCEDURE

1. Facts Pertaining to TERIs Judgment Against Albert on its Complaint

TERI is a nonprofit organization that guarantees payment of private student loans, including the three loans obtained by Albert while she attended law school. The lender was Society National Bank, which then changed its name to Key Bank USA, N.A. (hereafter, for convenience, the Bank). Payment on all three loans was to begin after Alberts graduation in 1997. Albert was granted three forbearances, the last expiring in January 1999. Albert made a few payments, but then defaulted on her loan obligations. As guarantor, TERI paid the loans and was assigned the three promissory notes.

In March 2000, Albert filed for voluntary chapter 7 bankruptcy. Albert filed an adversary proceeding against TERI (and other creditors) seeking a declaration that her student loans, which are automatically nondischargeable in bankruptcy, imposed an undue hardship on her. (11 U.S.C.A.  523(a)(8).) In August 2001, the bankruptcy court granted TERI a summary judgment ruling Alberts student loan obligations were nondischargeable as they did not impose an undue hardship on her. Albert appealed that ruling, and it was affirmed on May 24, 2002, after which TERI began to demand payment on the notes.

In January 2005, TERI filed three separate actions, one on each promissory note. Two were eventually dismissed without prejudice, and the amended complaint in this action, filed in March 2006, incorporated TERIs causes of action on each of the three notes. The operative complaint, TERIs second amended complaint filed May 30, 2006, alleged causes of action on a $6,000 promissory note, a $2,866 promissory note, and a $5,000 promissory note. TERI alleged each promissory note was a negotiable instrument under California Uniform Commercial Code section 3104, subdivision (a).

Alberts answer pleaded 25 affirmative defenses, including that the claims were barred by the applicable statute of limitations. She also filed a cross‑complaint against TERI, CIR, and Equifax, alleging violations of the CCRAA and several common law torts. The gist of her allegations was her student loans had been discharged by her bankruptcy, but continued to be improperly reported on her credit report. (The cross‑complaint will be discussed in greater detail below.)

At the beginning of the court trial, the court concluded the complaint was timely under both the four‑year statute of limitations applicable to written contracts (Code Civ. Proc.,  337), and the six‑year statute of limitations applicable to promissory notes (see Cal. U. Com. Code,  3118).

a. TERIs Evidence

John McGuillicuddy was a litigation specialist employed by First Marblehead Educational Resources, the servicing agent and custodian of records for TERI. Once TERI paid off a defaulted loan, in the normal course of business, it would be assigned the note and receive the file on the loan from the original lender or its servicing agent, which in this case was AES/PHEAA (American Education Service/Pennsylvania Higher Education Assistance Agency, hereafter, PHEAA). The file includes the original promissory note and all other pertinent documents related to the loan. The original promissory notes and loan documents were produced at trial and introduced into evidence.

i. Promissory Note No. 1

TERI introduced into evidence (Exhibit # 3) the original application for a Law Access Loan and a Law Access Loan promissory note (hereafter, promissory note No. 1) both dated August 1994 and signed by Albert (under her former married name Sheridan). The application was for an educational loan of $6,000. McGuillicuddy explained the lender approves a maximum loan amount, but ultimately only disburses the amount the law school actually needs for the student. The amount disbursed was indicated on the federal truth in lending disclosure statement. On promissory note No. 1, the lender was the Bank. The promissory note contained Alberts promise to pay the principal sum of the loan amount requested, $6,000, to the extent it is advanced to me or paid on my behalf . . . . The note states the actual disbursement amount would be indicated on the disclosure statement issued after disbursement of the loan proceeds. The promissory note bore a variable rate of interest based on the 91‑day Treasury Bill average, to begin accruing on the disbursement date, with repayment to begin following graduation. The promissory note provided TERI was the guarantor on the note and if TERI was required to repay the loan, it would become the owner of the note and as a creditor would have all the rights of the original lender to enforce [the promissory note.]

TERI introduced into evidence (Exhibit # 1) an assignment of promissory note No. 1 from the Graduate Loan Center (which McGuillicuddy testified was the same entity as PHEAA) to TERI dated December 20, 1999. The assignment was stapled to the original loan application and promissory note.

McGuillicuddy testified the final total amount of the loan on promissory note No. 1 was $2,652. Exhibit # 4 was the disclosure statement relating to that loan. The disclosure statement states the total amount of the loan was $2,705.05, but that figure included two supplemental guarantee fees totaling $53.05, which were not to be added to the principal amount of the loan until the repayment period began, and which apparently were not included in McGuillicuddys total. Albert agreed the amount was disbursed to her law school.

ii. Promissory Note No. 2

In April 1996, Albert obtained a second student loan through the Law Access program. TERI introduced the original application, note, assignment, disclosure statement, and other loan documents. The requested loan amount was $2,866, the promissory note (otherwise on virtually the same terms as promissory note No. 1) states it is for $2,866, and the disclosure statement indicates the loan amount was $2,866. (As with the first loan, the disclosure statement states the total loan amount was $2,923.32, a figure that includes a supplemental guarantee fee of $57.32.)

iii. Promissory Note No. 3

In April 1997, Albert obtained a third loan, a Bar Examination Loan (BEL), TERI introduced the original application, note, assignment, disclosure statement, and other loan documents. The application, promissory note, and disclosure statement all indicate a loan amount of $5,000, on the same basic terms as the other two loans. (As with the first and second loans, the disclosure statement states the total loan amount was $5,150, a figure that includes a supplemental guarantee fee $150.)

iv. Facts Concerning All Three Promissory Notes

McGuillicuddy testified there were three forbearances granted by the original loan server, PHEAA, affecting all three of the promissory notes, the last of which expired in January 1999. Payment records, kept in the ordinary course of business, showed Albert made four payments to PHEAA, the last in June 1999, allocated among the three loans. Albert made no payments after that.

TERI was required to pay off Alberts three notes. As of the date of trial the amount owed each loan (principal and accrued interest) was $5,440.26 on promissory note No. 1; $5,203.55 on promissory note No. 2; and $8,686.78 on promissory note No. 3.

Sharita Thorn, a service manager at PHEAA, also testified for TERI. She confirmed each of the promissory notes was for a loan originally serviced by PHEAA for the lender, the Bank. Thorn confirmed that when a borrower defaults, PHEAA requests the guarantor to pay it off, and as part of its agreement with the lender, PHEAA is authorized to assign the note to the guarantor once it has been paid off. The assignment would be stapled to the note. She testified each of Alberts delinquent notes were assigned to TERI after it paid them off. She authenticated the original files sent to TERI on each of the three notes (note, application, assignment), and authenticated PHEAAs payment history (Exhibit # 12) on each of the three notes.

Albert testified she did obtain the loans in question, and defaulted on them, but maintained they were all discharged by her bankruptcy. She testified that in the course of the bankruptcy proceeding, the lenders attorneys told her the debts were discharged.

b. Judgment on the Complaint

After TERI and Albert rested on the complaint, the trial court ruled that as a matter of law Alberts three student loans were not discharged by her bankruptcy. It stated it would enter judgment on TERIs complaint against Albert for a total of $19,326.59, combined principal and interest, on the three notes (broken down as follows: promissory note No. 1$5,440.26; promissory note No. 2$5,203.55; promissory note No. 3$8,682.78.) The court turned to Alberts cross‑complaint.

2. Facts Concerning Alberts Cross‑Complaint

a. The Cross‑Complaint

Alberts cross‑complaint alleged several causes of action against TERI, CIR, and Equifax for violation of the CCRAA and various common law torts. The gist of her factual allegations was that in July 2000, the bankruptcy court granted a full discharge that necessarily included the three promissory notes held by TERI. TERI then improperly reported the discharged debts to credit reporting agencies and hired collection agencies to enforce the debts. Despite Alberts repeatedly informing TERI and CIR the debts were discharged by her bankruptcy, TERI did not quit reporting or attempting to collect on the notes. Albert alleged Equifax, a consumer credit reporting agency, failed to take reasonable steps to verify the accuracy of its reports and violated the CCRAA by reporting the three student loan promissory notes held by TERI. Various other causes of action (negligence, defamation, intentional infliction of emotional distress, and intentional interference with prospective economic advantage) were premised upon allegations that Equifax issued a credit report with erroneous financial information and failed to remove that information.

b. Discovery Disputes

Alberts original cross‑complaint was filed in June 2005. On May 18, 2006, Albert obtained an order placing under seal all documents, exhibits, and other information containing any of Alberts personal or financial information.[1] The order required [t]he parties shall maintain the confidentiality of the documents placed under seal as well as the information contained in those documents.

A July 3, 2006, trial date was set. On May 16, 2006, Equifax served Albert with a notice of deposition to take place on June 2 (the last day before the discovery cutoff) and a document production request. On May 30, Albert told Equifaxs counsel she would not appear at the noticed deposition because Equifax had not cleared the date with her first. She refused to agree to another date because it would be after the discovery cut off.

On June 6, Equifax filed a motion to compel Albert to appear for her deposition. Albert filed a motion for protective order arguing Equifax could not unilaterally set a deposition date, and because the discovery cutoff had passed, she could no longer be deposed. Albert also asked the court for a protective order to protect her financial privacy. The court granted Equifaxs motion to compel ordering Alberts to submit to her deposition at her convenience as to the date and time. The trial date was advanced to June 26.

On June 12, Equifax filed a second motion to compel Albert to appear at her deposition on June 13. Its attorney explained that after the courts first protective order, Albert had offered two possible dates, June 13 or June 21, for her deposition to take place at Alberts offices in Irvine. Equifax selected the June 13 date. Albert then told the attorney she would only appear on June 21. Equifax believed the date was too close to the June 26 trial date. The court granted the motion and ordered Albert to appear for her deposition at 2:00 p.m., on June 13 at her Irvine offices.

On June 14, Albert filed a motion for protective order. She explained that at her deposition on June 13, Equifax attempted to question her on her private financial information, including questions about the accuracy of her credit report, and she refused to submit to such questioning unless Equifax stipulated to a protective order. The motion was denied and Albert was ordered to appear for her continued deposition on June 21.

On June 20, Equifax filed a third motion to compel Albert to appear for her deposition on June 21 and to produce documents at her deposition. Equifaxs counsel explained that on June 16, Albert advised Equifax she would not appear for her deposition on June 21 in her Irvine offices, as ordered by the court, and if Equifax wanted to depose her, she would only appear at a new location in Burbank. The court granted the motion to compel ordering Albert to appear for her deposition on June 21 in her Irvine offices. It again ordered her to produce any and all documents responsive to Equifaxs properly served requests for production at the time of her deposition and if the documents were not produced, Albert would be precluded from introducing any documents at trial which would have been responsive to Equifaxs request.

The trial date remained set for June 26. On June 23, TERI and CIR filed two motions in limine. One, asking to exclude Alberts newly designated expert from testifying was granted. The other, asking to preclude Albert from asserting the TERI student loans were discharged by her bankruptcy, in view of the judgment entered in the bankruptcy adversary proceeding that they were not discharged, was taken under submission when the court trial began on June 26.

Equifax made an oral motion to exclude Alberts testimony regarding the accuracy of the credit report on her student loans and damages from any claimed inaccuracies. Equifaxs counsel explained in both sessions of her deposition, Albert repeatedly refused to answer any questions about financial matters. Whenever counsel attempted to question Albert on exactly what information on her credit report was inaccurate, Albert refused to answer citing financial privacy concerns. Counsel also explained the court had three times ordered Albert to produce documents at the time of her deposition. At the final session of her deposition, Albert brought documents, but refused to give any of them to Equifaxs attorney citing her privacy concerns. Then, once the deposition was completed, she handed over all the documents. The obvious effect of Alberts acts was that Equifax never had an opportunity to question Albert on the documents.

Albert (who had co‑counsel, but has largely represented herself throughout these proceedings) explained she felt she should not have to turn over any documents unless a protective order was in place. Alberts co‑counsel conceded there was already an order in place requiring all financial information remain confidential, but he thought it might be a little bit ambiguous. The court took the motion under submission, indicating it would read the deposition transcript and decide if Albert should be precluded from testifying about her credit report or introducing documents she refused to produce for her deposition.

c. Trial on the Cross‑Complaint

After the court ruled on TERIs complaint, it turned to Alberts cross‑complaint. It excluded Albert from presenting any evidence or documents that should have been presented at her deposition. Alberts attorney attempted to question Albert about the Equifax credit report and what information in it was inaccurate. The court would not permit her to testify about inaccuracies in the report because she had refused to produce the report in her deposition so Equifax could question her on it. When Alberts counsel attempted to ask Albert if the TERI student loan notes listed on the credit report had been discharged in her bankruptcy, the court would not permit that line of questioning in view of its ruling on the complaint that the TERI student loans were not discharged.

Albert rested and the court granted TERI and CIRs motion for nonsuit and Equifaxs motion for judgment. The court denied Equifaxs request for additional sanctions against Albert noting that precluding her from presenting evidence on the issue (i.e., the alleged inaccuracies in Equifaxs credit report concerning the TERI student loan) was in the nature of a discovery sanction.

3. The Judgment

The court entered a judgment against Albert awarding TERI the sum of $19,326.59, together with prejudgment interest of $14,140.68, post judgment interest on the balance owing at the rate of ten percent (10%) per annum plus costs and attorney fees. It entered judgment in favor of TERI, CIR, and Equifax on Alberts cross‑complaint. The court subsequently awarded attorney fees and costs, and although the order is not in the record, Albert states in her opening brief the award was for over $30,000.

DISCUSSION

A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is with that very important rule of appellate procedure in mind that we consider Alberts appeal and attempt to decipher her numerous arguments.

1. Negotiable Instruments

Alberts first contention is that the three promissory notes sued upon by TERI are not negotiable instruments within the meaning of section 3104 of article 3 of the California Uniform Commercial Code. It is not clear whether she is attempting to argue there is insufficient evidence to support a judgment in TERIs favor for breach of the promissory notes, or whether she is attempting to remove TERIs complaint from the six‑year limitations period applicable to actions to enforce promissory notes payable at a definite time. (Cal. U. Com. Code,  3118, subd. (a).) We consider the contention from both perspectives.

[A] promissory note is a form of negotiable instrumentan unconditional promise to pay money signed by the person undertaking to pay, payable on demand or at a definite time. [Citations.] A promise to pay money contained in a note is legally binding in accordance with the established rules governing negotiable instruments contained in article 3 of the California Uniform Commercial Code. (Saks v. CharityMissionBaptistChurch (2001) 90 Cal.App.4th 1116, 1132; see Cal. U. Com. Code,  3104.)

Albert argues her promise to pay contained in the three notes was not unconditional because the final disbursement amount was not on the face of the notes. Rather, one has to refer to the disclosure statements issued when final disbursement on the loan was made to ascertain the amount. The promissory notes each stated the principal amount owed was the loan amount requested to the extent it is advanced to me or paid on my behalf . . . . The need to refer to the disbursement records to ascertain the actual amount disbursed does not make Alberts promise to pay conditional. (See Cal. U. Com. Code,  3106, subd. (a).)

Albert also argues the promissory notes were not negotiable instruments because the actual interest rate was not on the face of the notes. Nonsense. The promissory notes spelled out a readily ascertainable variable interest rate. Albert cites no authority for her suggestion that variable rate promissory notes are not negotiable instruments.

Albert contends the notes were not negotiable instruments for two additional reasons. First, the originals were not turned over to the court clerk for cancellation at the conclusion of the trial. (See Cal. Rules of Court, rule 3.1806 [In all cases in which judgment is rendered upon a written obligation to pay money, the clerk must, at the time of entry of judgment, unless otherwise ordered, note over the clerks official signature and across the face of the writing the fact of rendition of judgment with the date of the judgment and the title of the court and the case].) Albert offers no reasoned analysis as to how the clerks failure to cancel the notes changes their legal character. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [argument waived by failure to provide analysis or supporting authority].) And, nothing in the record suggests Albert ever brought this omission to the trial courts attention.

Albert also argues the promissory notes could not be enforced because California Uniform Commercial Code section 3308 requires the original promissory note be produced and authenticated at trial. She asserts TERI produced only copies of the loan documents. Preliminarily, California Uniform Commercial Code section 3308 says nothing about producing original documents. California Uniform Commercial Code section 3308 provides the authenticity of signatures on a negotiable instrument is admitted unless specifically denied in the pleadings. We note Albert did not specifically deny the authenticity of her signature on the promissory notes and concedes she took out the loans. And given that California Uniform Commercial Code section 3309 specifically provides for enforcement of a note when the original has been lost or destroyed (provided that the borrower is adequately protected from future claims on the same instrument), Alberts contention that absent an original instrument there can never be a recovery on the debt is unfounded.

But more importantly, the record indicates the originals were produced at trial. When the promissory notes and other documents were introduced into evidence, TERIs counsel specifically asked if the exhibits were the originals of the documents and McGuillicuddy responded that they were. At no time did Albert object that the documents introduced into evidence were not originals. Albert did not comply with California Rules of Court, rule 8.224, which requires a party wanting the reviewing court to consider any original exhibits that were admitted in evidence . . . , to timely serve and file the proper notice in superior court designating those exhibits. Instead, Albert tardily filed in this court a list of trial exhibits she wished to file in this court, and we permitted her to do so. Those exhibits contain photocopies of the TERI trial exhibits, not the original trial exhibits. Accordingly, Albert has not provided us with anything to contradict testimony at trial the TERI exhibits were original documents.

Albert has failed to demonstrate the promissory notes were not negotiable instruments. Furthermore, she has failed to demonstrate the evidence presented at trial was insufficient to support the conclusion she breached her obligations under the notes. And, to the extent her argument is construed as an attack on the trial courts finding TERIs action was timely filed, it must be rejected as well. Assuming the sixyear statute of limitations (Cal. U. Com. Code,  3118, subd. (a)), commenced when Albert defaulted (her last payment was made in June 1999) and the amended complaint filed in March 2006 is the pleading we must consider for limitations purposes (i.e., that the amended complaint does not relate back to the original complaints filed in January 2005), that period is approximately six years and nine months. But, the limitations period was tolled for the two years and three months that Alberts bankruptcy proceedings were pending (from March 8, 2000, until May 24, 2002). (See Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369.) Thus, the complaint was timely filed.[2]

2. Standing

Albert contends TERI has no standing to bring an action on the promissory notes because: (1) it was not the lender; (2) the notes were not endorsed to TERI; (3) it was not a holder in due course of the promissory notes because it took them by assignment with knowledge of Alberts default on the notes; and (4) a guarantor cannot sue to enforce the promissory notes.

Albert cites Consolidated Capital Income Trust v. Khaloghi (1986) 183 Cal.App.3d 107, 112, for the proposition that a cause of action on guarantee is separate from the cause of action on the underlying debt. From that she extrapolates a guarantor . . . cannot step into the shoes of the lender and sue for breach of the promissory note. The case does not aid Albert as it concerned an action by the lender against the guarantor to compel it to honor the guaranty, not the guarantors rights once it has paid off the notes it guaranteed.

It is well established a guarantor of a note, whose joint liability under the note is secondary, can pay the note and still maintain an action on the note itself against the party primarily liable for its payment. [Citations.] (Quality Wash Group V, Ltd. v. Hallak (1996) 50 Cal.App.4th 1687, 1700, fn. 6; Flojo Internat., Inc. v. Lassleben (1992) 4 Cal.App.4th 713, 720‑721; see also Cal. U. Com. Code,  3419, subd. (e) [accommodation party [e.g., guarantor] who pays the instrument is entitled to reimbursement from the accommodated party [e.g., borrower] and is entitled to enforce the instrument against the accommodated party].)

TERI produced evidence Albert defaulted on the three promissory notes and pursuant to the Banks demand (via its loan servicer PHEAA), it paid the three promissory notes. Albert does not dispute these facts. TERI introduced evidence that as service agent for the Bank, PHEAA was authorized to assign notes paid off by guarantors, such as TERI, to the guarantor so the guarantor may enforce the note against the borrower. Albert introduced no evidence to the contrary. TERI introduced the assignments of the three notes, and abundant evidence of the payment history on the notes to support the judgment amount.

3. Bankruptcy Discharge: Federal Preemption

Albert contends the state court lacked jurisdiction to enter a judgment on the three promissory notes because the debts were discharged by her bankruptcy, this action violates the permanent injunction against collecting debts discharged in bankruptcy, and TERI failed to prove the federal court summary judgment denying her a hardship discharge for her student loan debts applied to the three promissory notes it held.

The contentions are frivolous. Student loans are automatically excluded from a chapter 7 bankruptcy discharge. (11 U.S.C.A.  523(a)(8).) The only exception is when the debtor affirmatively proves to the bankruptcy court that excluding the student loan debt from discharge would impose an undue hardship. (Ibid.; In re Pardee (9th Cir. BAP 1998) 218 B.R. 916, 919‑920; see also 11 U.S.C.A.  523, historical and statutory note [provision is self‑executing and lender is not required to file a complaint to determine the nondischargeability of any student loan].) The three promissory notes held by TERI on Alberts student loans were as a matter of law not discharged by her bankruptcy. Albert filed an adversary proceeding in the bankruptcy court against TERI seeking a declaration her student loans posed an undue hardship, but the bankruptcy court denied her application and held the student loans were not discharged.

Albert provides absolutely no authority for her proposition that once a bankruptcy proceeding is over, and the automatic stay has been lifted, debts that as a matter of law were not discharged by bankruptcy nonetheless remain unenforceable by the state court. The two cases she cites, Choy v. Redland Ins. Co. (2002) 103 Cal.App.4th 789 and Saks v. Parilla, Hubbard & Militzok (1998) 67 Cal.App.4th 565, do not support her argument. Both cases involved common law tort causes of action brought against the debtor while bankruptcy proceedings were pending premised on allegations the debtor had or was misusing the bankruptcy process. Both cases concluded the state court lacks jurisdiction to determine whether the bankruptcy process was abused. Neither concerned post‑bankruptcy attempts to collect on nondischargeable debts.

Albert also contends any state court judgment on the three promissory notes must be limited to what she stated in her bankruptcy petition was due on the notesshe said only $1,400 was due, so thats all TERI can collect. Not surprisingly, she cites no legal authority to support the claim; we decline to consider it further. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)

4. Prejudgment Interest

Albert contends the prejudgment interest awarded to TERI by the court was usurious because the court awarded $19,326.59 in damages, an amount that already included the interest accruing on the debt, plus another $14,140.68 in prejudgment interestfor a total judgment of $33,467.27. TERI counters the judgment against Albert awarding TERI the sum of $19,326.59, together with prejudgment interest of $14,140.68, was not intended to give TERI an additional $14,140.68. Rather, that was the amount of prejudgment interest included in the $19,326.59 total. TERI states it is willing to clarify in a new [j]udgment . . . that the figure of $19,326.59 includes both principal and pre‑judgment interest. Accordingly, we will order the judgment so modified.

5. Discovery Issues: Judgment on Alberts Cross‑Complaint

Albert raises several arguments relating to the dispute with Equifax over her deposition and document production which can be summarized as follows: (1) Equifax was not entitled to take her deposition in the first place so the court should not have granted its motions to compel; (2) she was entitled to a protective order to protect her financial privacy; and (3) the court erred by excluding her testimony concerning inaccuracies in her credit report and excluding other (unspecified) documents at trial. We review discovery orders for abuse of discretion. (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1261.) Alberts arguments are without merit.

Albert first complains the court erroneously permitted Equifax to begin discovery after the discovery cutoff. We disagree. With an original trial date of July 3, Equifax timely served a notice of deposition and document production request for June 2, one day before the 30‑day discovery cutoff. (Code Civ. Proc.,  2024.020, subd. (a).) Albert does not point to any irregularities in the original notice. Albert did not seek a protective order; she simply refused to appear at her properly noticed deposition assuming that by doing so the discovery cutoff would pass and she could avoid being deposed. Under such circumstances, the court properly granted the first motion to compel Albert to attend her deposition and produce the requested documents. (Code Civ. Proc.,  2025.450, subd. (a).) Alberts assertion the court erred in granting Equifaxs first, second, and third motion to compel because the deposition dates were past the discovery cutoff date is specious. The court has discretion to allow discovery past the discovery cutoff. (Code Civ. Proc.,  2024.050.) Albert has completely failed to show the court abused its discretion under the circumstances.

Albert next contends the court erred by compelling her to submit to her deposition and to produce requested documents without taking appropriate steps to protect her financial privacy. She contends the court abused its discretion by denying her requests for protective orders before requiring she answer deposition questions about her financial records or produce documents for her deposition. But, Albert completely fails to acknowledge there was already an order in place designed to protect any confidential financial information she might be required to divulge in her deposition. One month earlier, on Alberts motion, the court ordered all documents, exhibits and other information containing any of Alberts personal or financial information placed under seal, and specifically ordered all parties to maintain the confidentiality of the documents placed under seal as well as the information contained in those documents. Indeed, when questioned as to why the prior order was not adequate, all Alberts co‑counsel had to offer was that the order might be a little bit ambiguous. On appeal, Albert offers no explanation as to what the ambiguity was or why the first order was not sufficient.

Albert next contends the court erroneously refused to permit her to introduce any documents at trial because she failed to properly produce the documents for her deposition, or to testify about what she claimed to be inaccuracies in her credit report. She asserts the ruling constituted an improper use of motions in limine, and because the ruling effectively denied her an opportunity to present her case against Equifax, the error is reversible per se.

Albert relies on this courts opinion in R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, for the proposition a trial court should not engage in the wholesale disposition of a case through rulings on motions in limine. [Citation.] (Id. at p. 333.) But that case did not involve a ruling on discovery violations. Rather, in that case, the in limine motions were used as substitutes for summary judgment or summary adjudication motions. As noted even more recently by this court in Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1290, that concern is inapplicable here when the motions were not disguised motions for summary judgment or adjudication, but involved discovery sanctions.

We find no error in the courts ruling. Albert was ordered no fewer than three times to submit to her deposition and produce documents. The last order specifically warned Albert if documents were not produced, she would be precluded from introducing any documents at trial which would have been responsive to Equifaxs requests. Albert was suing Equifax on the theory it reported inaccurate credit information about her. Yet in each session of Alberts deposition, she refused to answer any questions about the very financial matters she had put at issue. She did not turn over any documents until after her deposition was concluded just a few days before trial, when it was too late to be questioned on them. When a party fails to obey an order compelling her attendance, testimony, and production of documents at her deposition, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . against that party deponent . . . . (Code Civ. Proc.,  2025.450, subd. (d).) Albert has not demonstrated the court abused its discretion by refusing to permit her to testify about matters on which she deliberately thwarted discovery.

Furthermore, [a] judgment may not be reversed on appeal . . . unless after an examination of the entire cause, including the evidence, it appears the error caused a miscarriage of justice. (Cal. Const., art. VI,  13.) When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.] (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)

We simply cannot see how Albert could have obtained a more favorable result. Her cross‑complaint against Equifax, TERI, and CIR was premised upon her claim her student loan notes were discharged in her bankruptcy, but the debts kept being improperly reported to (and by) Equifax, and Equifax failed to take reasonable steps to verify the accuracy of those reports. But as a matter of law, those debts were not discharged by Alberts bankruptcy. (11 U.S.C.A.  523(a)(8).) Consequently, we do not see how the courts rulings resulted in a miscarriage of justice.

DISPOSITION

The judgment is ordered modified to reflect an award to TERI against Albert of the sum of $19,326.59, an amount which includes both principal and all prejudgment interest. As modified, the judgment is affirmed. The Respondents are awarded their costs on appeal.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

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[1] This court issued a similar order directing the appellate record and all filings be under seal in accordance with California Rules of Court, rule 2.551.

[2] In view of this conclusion, we need not consider Alberts arguments concerning other limitations periods, or her arguments concerning the relation back doctrine. Nor need we consider TERIs argument that a 15‑year statute of limitations applicable to a cause of action for breach of a written contract under Ohio law (the promissory notes contain an Ohio choice of law provision) applied.