Estate of Richardson

Filed 9/21/07 Estate of Richardson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, William H. Kronberger, Jr., Judge. Affirmed.

Petitioner Diane Gail Stretton appeals probate court orders: (1) granting the motion for terminating discovery sanctions against her filed by contestant Donna Tobey and joined by contestant Sharon Freeburn; (2) denying Stretton's motions for sanctions against the contestants, for special accommodations, and for change of venue; and (3) denying her motion for reconsideration of these orders. Stretton contends the trial court abused its discretion by granting the motion for terminating sanctions for her failure to comply with the court's order compelling her deposition and production of documents because: (1) substantial evidence does not support the court's factual findings; (2) the terminating sanction was punitive rather than remedial; and (3) a lesser sanction would have been sufficient.

FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2003, Clara Richardson died, leaving three surviving adult daughters (Stretton, Tobey, and Freeburn).^[1] On April 1, Stretton filed a petition (Petition) for probate of a 2002 will allegedly signed by Richardson and for Stretton's appointment as executor of that will. Pursuant to the three-page will attached to the petition, Richardson left the residue of her estate to Stretton. On May 6, Tobey and Freeburn filed papers contesting admission of the 2002 will into probate.

On September 4, 2004, Tobey served a notice of deposition on Stretton, setting the deposition for October 15. Although Stretton was then represented by attorney John Roberts, Stretton communicated her objections to that deposition directly to Tobey's counsel. Tobey's counsel contacted Stretton's counsel (Roberts), who apparently agreed to work with her (Tobey's counsel) in rescheduling and completing Stretton's deposition. As a result, on November 17, Tobey served a notice rescheduling Stretton's deposition for December 13. After Stretton's counsel informed Tobey's counsel he was unable to communicate with his client, Stretton's deposition was rescheduled for December 21. On December 18 (Saturday evening), Stretton sent an e-mail directly to Tobey's counsel stating she had objections to her deposition.^[2] On December 19, Stretton's counsel left a voicemail for Tobey's counsel, stating he had been unable to communicate with Stretton and did not believe she would appear for her deposition on December 21. On December 20, Tobey's counsel sent Stretton's counsel a letter stating she was cancelling Stretton's December 21 deposition and did not intend to again reschedule it, but instead would file a motion to compel Stretton to appear for her deposition.

On January 4, 2005, Tobey filed a motion to compel Stretton's deposition and production of documents, requesting that the deposition be ordered to be held within two weeks of the hearing on the motion.

On January 24, the trial court held a hearing on Tobey's motion to compel. Although Stretton was not present, her counsel appeared on her behalf. Stretton's counsel stated he did not object to the court's tentative ruling granting Tobey's motion to compel although he preferred that the deposition be ordered to occur within a longer time period in consideration of his pending motion to be relieved as Stretton's counsel. Tobey's counsel did not object to a four-week limit on Stretton's deposition date. At the hearing, the court stated: "[L]et me assure everyone that if the deposition is held with further recalcitrance or delay in this matter, I will consider very serious sanctions." (Italics added.) Accordingly, the trial court confirmed its tentative ruling as modified, granting Tobey's motion to compel and ordering Stretton to submit to her deposition within four weeks of the January 24 hearing. The order further stated that Stretton was "to cooperate with counsel regarding the time and place of her deposition so as to minimize health concerns. Her deposition can take place at her home, to avoid travel or other inconvenience. If she is unable to 'go through boxes' to produce documents, she can produce the boxes for counsel to search."^[3] The court further admonished Stretton that any papers she filed or served directly while represented by counsel would not be considered. Importantly, the court's order stated: "The Court further advises Ms. Stretton to cooperate, as the Court will not hesitate to impose more serious sanctions for discovery violations in this case." (Italics added.)

On or about January 24, Tobey served a fourth amended notice of deposition and demand for production of documents, stating: "Contestant Donna Tobey will take the deposition of Respondent Diane Stretton on February 22, 2005 at 9:00 a.m. at respondent's home, located at 600 Central Avenue, #339, Riverside, CA 92507." That notice was served on Stretton's counsel. On January 27 the court filed its final order compelling the deposition of Stretton and the production of documents described in the Fourth Amended Notice of Deposition within four weeks of January 24.

On February 15, a hearing was held on Roberts's motion to be relieved as Stretton's counsel. Although Stretton did not appear at the hearing either in person or by telephone, the trial court noted she had called the court the day before regarding appearing telephonically and was informed by the court clerk of the requirements for appearing telephonically. Roberts argued he had "made every attempt possible to represent [Stretton] but [is] simply unable to do so given her inability and unwillingness to communicate and participate in this case other than to file papers . . . or attempt to file objections on her own and serve them on [opposing] counsel, circumventing [my] representation of her . . . ." At the conclusion of the hearing, the trial court granted Roberts's motion to be relieved as Stretton's counsel.^[4]

On the morning of February 22, Tobey's counsel arrived at the Riverside address (i.e., 600 Central Avenue, #339) and found Stretton sitting in her car filled with boxes and documents. Stretton eventually rolled down her window and told Tobey's counsel she could not let her into the condominium because: (1) it was not her home; (2) she did not have a key; and (3) she did not know where her son Michael was to provide access to it. Freeburn's counsel arrived and called the trial court regarding the situation. The court apparently spoke with Stretton, who then agreed to be deposed at a Riverside hotel. Stretton's deposition began at about 10:24 a.m. She testified that she lived on Sleepy Hollow Terrace in Lake Forest, California. However, she refused to answer questions regarding her medical and employment background and the location of 222 boxes of documents she had removed from her father's home. Stretton was evasive, argumentative, uncooperative and nonresponsive regarding many questions. At about 3:30 p.m., the deposition was adjourned because Stretton complained of pain and confusion caused by that pain. At that time, Stretton agreed to adjourn her deposition until March 1 in Temecula.

On March 1, Stretton appeared in Temecula at the continuation of her deposition and testified she was not feeling well and would not be able to give her best testimony. Although she stated her pain began the night before, she claimed she was unable to call or e-mail Tobey's counsel with advance notice of her inability to proceed with her deposition that day. Furthermore, although she stated she was on so many Vicodin that "she lost count" and her pain was a 9 on a scale of 1 to 10, she had driven from Lake Forest to Temecula that morning.^[5] Because of Stretton's claimed condition, her March 1 deposition was adjourned. However, Stretton did not cooperate with the other parties in rescheduling the continuation of her deposition. Stretton was admonished that a court order required her appearance at her deposition and, absent a physician's note regarding her inability to testify, the other parties would not give her notice of a continued deposition date, but rather would seek terminating sanctions against her. Despite that admonition, the parties subsequently gave Stretton notice that her deposition would be continued at 10:30 a.m. on March 7 in Temecula. Tobey's counsel also sent an e-mail to Stretton informing her of that notice and her intent to seek terminating sanctions against Stretton if she did not appear.

On the morning of Sunday, March 6, Stretton sent an e-mail to Tobey's counsel objecting to her deposition. Tobey's counsel first learned of that e-mail on the morning of Monday, March 7, about five minutes before her scheduled departure for Temecula. Tobey's counsel was unable to contact Freeburn's counsel and the court reporter to inform them of Stretton's objections prior to their travel to Temecula. Stretton did not appear in Temecula on March 7 for her continued deposition.

On April 7, Tobey filed a motion seeking terminating sanctions against Stretton. Tobey requested an order terminating Stretton's pleading (i.e., the Petition) and allowing a default to be entered for her failure to comply with the court's order compelling her deposition and production of documents. Freeburn subsequently joined in Tobey's motion.

On April 11, Stretton filed motions seeking a change of venue and terminating and other sanctions against Tobey and Freeburn. She also filed a motion seeking special accommodations pursuant to the Americans with Disabilities Act. However, she did not file any opposition to the motion for terminating discovery sanctions against her.

On May 3, after hearing arguments of the parties (including Stretton), the trial court confirmed its tentative ruling granting Tobey's motion for terminating sanctions and denying all of Stretton's motions. That ruling stated in part:

"The Court grants Contestant's [i.e., Tobey's] motion for terminating sanctions, as Ms. Stretton has made it abundantly clear that she will not comply with the Court's Orders. Accordingly, the Court hereby issues the following sanctions under California Code of Civil Procedure section 2023.030(d): the Court strikes the petition of Diane Stretton for probate of the alleged last will of the decedent, Clara Richardson.

"In its last ruling on Contestant's motion to compel Ms. Stretton's deposition (dated, 01/24/05), the Court warned Ms. Stretton that, in light of all the delays, inconvenience and significant expense caused by her uncooperative response to proper discovery requests, it would not hesitate to impose more serious sanctions if she continued to engage in discovery violations.

"Apparently, however, Ms. Stretton did not take the Court too seriously. Instead of allowing Contestant's counsel to depose her at her home, which the Court believed would greatly diminish any inconvenience caused to her by the deposition (especially in light of her complaints of pain and inability to drive), Ms. Stretton appeared at the address in Riverside that everyone believed was her place of residence, only to claim that it was her son's residence and that she had no keys.

"After locating a conference room at a hotel nearby, what ensued was more of the same behavior from Ms. Stretton, including evasive, argumentative and non-responsive answers to foundational and other relevant questions, which necessitated yet another trip to finish her deposition, this time in Temecula. Surprisingly, Temecula was chosen because it turns out to be nearer to Ms. Stretton's true home address in Lake Forest, California. No completed deposition was taken in Temecula either because rather than respond to counsel's e-mail deposition notice (which was given to her pursuant to her own request and promise to reply), Ms. Stretton decided to submit last minute, meritless objections to her deposition.

"This uncalled for, evasive maneuvering occurred after Ms. Stretton was specifically ordered by this Court to 'cooperate' with counsel regarding discovery. See previous Ruling, dated 01/24/05; Declaration of [Tobey's counsel]. Further, Ms. Stretton has yet to produce the relevant documents properly requested by Contestant, despite the Court's clear order to produce the documents in whatever form or manner was most convenient to her. [Citation.]

"In sum, the Court, as well as Contestant's counsel, have bent over backwards to accommodate Ms. Stretton, and at a significant cost to Contestant, only to be rebuffed by two new motions for sanctions. The delay and discovery abuses perpetrated by Ms. Stretton cannot be countenanced any further by this Court. [] . . . []

"Lastly, Ms. Stretton has filed a motion for special accommodations in light of her disability. The Court considers this motion to be moot as well; however, it further notes that Ms. Stretton has already been given many of the accommodations she requests, including permission to appear at court hearings by telephone. With respect to her request for additional time to complete and propound discovery, the above ruling makes it abundantly clear that Ms. Stretton has been given more than enough time to respond to discovery even after one has taken into account her disability.

"Further, there is no evidence before the Court that supports Ms. Stretton's request for additional time to file and oppose motions. Indeed, the evidence is all to the contrary. Ms. Stretton appears to have filed no less than 15 motions in the past several weeks. Surely, Ms. Stretton is capable of taking charge of litigation and of typing very quickly given her stated disability that she can sit 'for no more than 10 minutes at a time for a total of 50 minutes a day.' [Citation.]"

On May 6, the trial court issued a written order granting Tobey's motion for terminating sanctions, stating: "The Court hereby issues the following sanctions under California Code of Civil Procedure [former] Section 2023(a)(4): the Court strikes the petition of Diane Stretton for probate of the alleged last will of the decedent, Clara Richardson."^[6]

On or about May 19, Stretton filed a motion to "rehear" (i.e., reconsider) the trial court's ruling granting Tobey's motion for terminating sanctions and denying Stretton's motions. Stretton argued that, despite her representation by Roberts at the time, she "knew nothing about any admonitions from the court" regarding its motion to compel and warning of possible serious sanctions were she to not comply.

On July 26, after hearing arguments of the parties (including Stretton), the trial court denied Stretton's motion for reconsideration, stating in part: "I do not believe that the moving party has carried the burden of demonstrating sufficient new facts by affidavit that would persuade the court to reconsider [its] prior rulings. . . . [] The arguments and matters discussed and set forth both in the pleadings and this afternoon are essentially those that had been previously made and ruled upon by the court . . . ."

On August 5, the trial court issued a written order denying Stretton's motion for reconsideration. In that order, the court stated Stretton had failed to show any new facts to support her motion for reconsideration. Furthermore, the court stated Stretton was represented by counsel at the time of the court's order compelling her deposition and her counsel "chose not to oppose the motion, appeared at the hearing, and decided to cooperate with opposing counsel to establish a deposition date and time . . . ." Rejecting Stretton's argument she had no knowledge of the court's warning of possible terminating sanctions were she not to comply, the court stated: "Ms. Stretton is mistaken. The Court worded its warning carefully, but told Ms. Stretton in no uncertain terms that: 'The court further advises Stretton to cooperate, as the Court will not hesitate to impose more serious sanctions for discovery violations in this case.' Further, the fact that Ms. Stretton was present at the residence in Riverside in which everyone believed she was living . . . at the appointed time for her deposition also demonstrates that she received the court's order, which specifically stated that her deposition should be taken at her home to avoid all inconveniences to her. In fact, Ms. Stretton admits that she received 'a copy of the order of 1/27/05 of this court.' "

Stretton, in propria persona, timely filed notices of appeal challenging the trial court's order granting Tobey's motion for terminating sanctions and the court's order denying Stretton's motion for reconsideration.

On April 6, 2007, Tobey filed a motion to augment the record on appeal and a request for judicial notice. On May 1, we granted Tobey's motion to augment the record on appeal with Exhibits B through Z attached to her motion, but delayed ruling on her request for judicial notice of Exhibit A attached until consideration of this appeal.^[7]

On August 13, 2007, one day before oral argument, Stretton filed a motion for an order granting judicial notice and on August 14, 2007, the day of oral argument, Stretton filed a motion to strike respondent's brief, or, in the alternative, for an extension of time to file a "corrected" reply brief. Both motions are denied as untimely.

DISCUSSION

I

Tobey's Motion to Dismiss the Appeals

On November 21, 2006, Tobey filed a motion to dismiss Stretton's appeals of the trial court's order granting Tobey's motion for terminating sanctions and order denying Stretton's motion for reconsideration. Tobey argues Stretton violated this court's September 19, 2006 order that warned the parties:

" 'All parties are reminded documents violating the rules of court must not be filed. (See California Rules of Court, rule 46.) On the Court's own motion, sanctions may be imposed if a party commits any unreasonable violation of these rules. (See California Rules of Court, rule 27(e)(1)(C).) Every document filed with this court must be accompanied by a proof of service and the document must be served on opposing counsel as indicated in the proof of service. Failure to do so will subject the filing party to the rejection of the document under rule 46 and sanctions under rule 27(e)(1)(C).' "

Tobey also argues Stretton violated other rules applying to her appeals.^[8]

Assuming arguendo Stretton violated our order quoted above and appellate rules in the manner Tobey asserts, we believe those violations were not sufficiently egregious, in the circumstances of this case, to warrant the exercise of our discretion to dismiss Stretton's appeals. (Winkler v. Southern Cal. etc. Med. Group (1955) 136 Cal.App.2d 356, 357; cf. Berger v. Godden (1985) 163 Cal.App.3d 1113, 1118, fn. 5.) Accordingly, we deny Tobey's motion for dismissal. Furthermore, we deny Tobey's alternative request that we impose monetary sanctions on Stretton for those purported violations.

II

Order Granting Motion for Terminating Sanctions

Stretton contends the trial court abused its discretion by granting Tobey's motion for terminating discovery sanctions.

A

Code of Civil Procedure section 2023.010^[9]describes conduct that is considered a misuse of the civil proceeding discovery process:

"Misuses of the discovery process include, but are not limited to, the following: [] . . . []

"(d) Failing to respond or to submit to an authorized method of discovery.

"(e) Making, without substantial justification, an unmeritorious objection to discovery.

"(f) Making an evasive response to discovery.

"(g) Disobeying a court order to provide discovery.

"(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. . . ."^[10] (Italics added.)

In the event parties engage in misuse of the discovery process, section 2023.030 authorizes courts to impose certain sanctions for that misuse:

"To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

"(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. . . .

"(b) The 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. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

"(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

"(d) 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. . . ." (Italics added.)

Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913 states:

"Disobedience of a court order constitutes an abuse of discovery for which the court may dismiss the action [or strike a party's pleading]. [Citation.] 'In choosing among its various options for imposing a discovery sanction, a trial court exercises discretion, subject to reversal only for manifest abuse exceeding the bounds of reason.' [Citation.] ' "The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. . . . Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be wilful." ' [Citation.] '[T]he issue before us is not what sanction we would have imposed, but whether the trial court abused its discretion in ordering dismissal [or striking a party's pleading] as a sanction.' [Citation.]" (Miranda, supra, at pp. 928-929.)

Although a trial court may impose sanctions that are suitable and necessary to enable a party seeking discovery to obtain the objects of that discovery, it may not impose sanctions designed to impose punishment. (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331-332; Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64, superseded by statute on another ground as noted in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 969; Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782.) Furthermore, in general, "[a] discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desired discovery had been provided and had been favorable. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 792 149 Cal.Rptr. 499 [superseded by statute on another ground as noted in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444].)" (Rail Services of America, supra, at p. 332.)

A court is not required to impose sanctions in a graduated fashion, but may apply "the ultimate sanction" against a party who has persisted in refusing to comply with discovery obligations. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 793.) Nevertheless, "terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party." (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Therefore, terminating sanctions may be properly imposed where there is a chronic pattern of delay or evasiveness by the offending party or where the refusal to obey a discovery order is willful and no lesser sanction would result in the offending party's compliance. (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1619; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488, disapproved on another ground by Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4; Rail Services of America v. State Comp. Ins. Fund, supra, 110 Cal.App.4th at p. 331.) In imposing terminating sanctions, trial courts generally consider "the totality of the circumstances: conduct of the [offending] 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.) Accordingly, on consideration of those circumstances, if a discovery "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 [i.e., terminating sanction]. [Citation.]" (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)

B

Considering the totality of the circumstances in this case, we conclude the trial court did not abuse its discretion by imposing on Stretton a terminating sanction and striking the Petition. As discussed above, although Stretton was then represented by counsel, in late 2004 Stretton twice communicated directly to Tobey's counsel her objections to noticed depositions, requiring rescheduling of the first deposition and cancellation by Tobey's counsel of the other deposition. On January 24, 2005, on Tobey's motion, the trial court issued an order compelling Stretton's appearance at her deposition within four weeks at her home. Stretton's counsel did not object to that order. Furthermore, that order expressly "advise[d] Ms. Stretton to cooperate, as the Court will not hesitate to impose more serious sanctions for discovery violations in this case." (Italics added.)

Despite that warning, Stretton, who was thereafter unrepresented by counsel (i.e., after February 15), did not comply with the trial court's order compelling her to submit to her deposition and to produce the documents described in the Fourth Amended Notice of her deposition. On February 22 (the scheduled date for her deposition), Stretton initially was uncooperative and claimed the Riverside address was not her home and, on commencement of her deposition at an alternative location, refused to answer questions regarding her medical and employment background and the location of 222 boxes of documents she had removed from her father's home. Stretton was evasive, argumentative, uncooperative and nonresponsive regarding many questions. At about 3:30 p.m., the deposition was adjourned because Stretton complained of pain and confusion caused by that pain. At that time, Stretton agreed to adjourn her deposition until March 1 in Temecula.

On March 1, Stretton appeared in Temecula at the continuation of her deposition, but testified she was not feeling well and would not be able to give her best testimony. Because of Stretton's claimed condition, her March 1 deposition was adjourned, but Stretton did not cooperate with the other parties in rescheduling the continuation of her deposition. Stretton was admonished that a court order required her appearance at her deposition and, absent a physician's note regarding her inability to testify, the other parties would not give her notice of a continued deposition date, but rather would seek terminating sanctions against her. Despite that admonition, the parties gave Stretton notice that her deposition would be continued at 10:30 a.m. on March 7 in Temecula. Tobey's counsel also sent an e‑mail to Stretton informing her of that notice and her intent to seek terminating sanctions against Stretton if she did not appear. On the morning of Sunday, March 6, Stretton sent an e-mail to Tobey's counsel objecting to her deposition. Stretton did not appear in Temecula on March 7 for her continued deposition.

On May 3, after summarizing the above-described sequence of events, the trial court granted Tobey's motion for terminating sanctions, noting Stretton's "uncalled for, evasive maneuvering" and concluding she had shown she would not comply with its discovery orders. The court's May 6 written order expressly granted Tobey's motion for terminating sanctions and struck the Petition.

The record on appeal shows the trial court considered the totality of the circumstances in deciding whether to grant Tobey's motion for terminating sanctions. (Lang v. Hochman, supra, 77 Cal.App.4th at p. 1246.) The court considered Stretton's conduct and implicitly, if not expressly, determined her actions were willful. (Ibid.) It also considered the detriment caused by Stretton's actions to the parties seeking discovery from her (i.e., Tobey and Freeburn). (Ibid.) It also considered the number of formal and informal attempts to obtain the discovery from Stretton. (Ibid.) Furthermore, the trial court could reasonably infer from the evidence that less severe sanctions would not produce Stretton's compliance with the discovery process or its order compelling her deposition. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280.) On that issue, the court expressly stated that "Stretton has made it abundantly clear that she will not comply with the Court's Orders." The court implicitly, and reasonably, concluded lesser sanctions (e.g., monetary, evidentiary, and issue preclusion sanctions) would not have been sufficient to remedy Stretton's discovery abuse.^[11] Furthermore, we conclude there is substantial evidence in the record to support the trial court's findings that Stretton had displayed a willful intent not to comply with her discovery obligations and that less severe sanctions would not produce her compliance. (Ibid.)

There is substantial evidence to support the trial court's apparent finding that Stretton displayed a chronic pattern of delay or evasiveness that warranted a terminating sanction. (Collisson & Kaplan v. Hartunian, supra, 21 Cal.App.4th at p. 1619; Laguna Auto Body v. Farmers Ins. Exchange, supra, 231 Cal.App.3d at p. 488.) A lesser sanction (e.g., precluding her from testifying or producing documents withheld during discovery) would not necessarily have been sufficient to produce her compliance or have been a more reasonable sanction. Rather, the trial court could reasonably infer from her chronic pattern of delay and evasiveness that any lesser sanction would not have produced her compliance with her discovery obligations or, as she argues, been a "more reasonable" sanction. Accordingly, we conclude the trial court did not abuse its discretion by granting Tobey's motion for terminating sanctions and striking the Petition.

Although Stretton argues the trial court could not impose the terminating sanction as punishment, she does not carry her burden on appeal to show that punishment was, in fact, the purpose of the trial court's order granting Tobey's motion for terminating sanctions. Similarly, she does not persuade us that Tobey and Freeburn were improperly placed in a more favorable position because of the terminating sanction than if she had complied with her discovery obligations. She does not show the Petition would have been granted had she complied with her discovery obligations, or that the other parties did not suffer any prejudice from her discovery abuse. Furthermore, there is substantial evidence supporting a finding she received notice of the trial court's January 24, 2005 order compelling her deposition and warning her of the possibility of serious sanctions were she not to comply. Stretton was represented by counsel at that hearing and we presume her counsel informed her of the court's order and delivered to her a copy of its written order. Furthermore, her subsequent action in appearing at the Riverside address on February 22 supports the inference she had knowledge not only of the court's order compelling her deposition but also of its warning about possible serious sanctions were she not to comply.

At oral argument Stretton emphasized her reliance on Duggan v. Moss (1979) 98 Cal.App.3d 735 and Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199 to support her position that the trial court in this case improperly imposed terminating discovery sanctions. In Duggan, the trial court issued an order compelling the plaintiff to answer interrogatories and on failure to comply the complaint would be dismissed. (Duggan, at pp. 737-738.) On failure of the plaintiff to comply, the trial court ex parte and without a hearing dismissed the complaint. The appellate court reversed the dismissal, stating that the trial court's order anticipating the remedy of dismissal if the plaintiff did not comply was improper and a terminating discovery sanction must be based on a hearing with full review of the current facts after the alleged failure to comply. (Id. at pp. 738, 744.) In contrast to Duggan, here the discovery order did not contain an automatic terminating sanction for noncompliance and the sanction was imposed only after the alleged failure to comply and a full noticed hearing in response to a motion for dismissal sanctions to which Stretton did not file a response.

In Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th 199, a form of discovery terminating sanctions was imposed on the defendants without a noticed motion that sought terminating sanctions and the defendants were unaware terminating sanctions were sought. (Id. at p. 208.) In contrast to Sole Energy Co., in this case Stretton was aware of the noticed motion that terminating discovery sanctions were being sought and she filed no opposition to the motion.

Stretton presents a multitude of other arguments that we decline to address. Rather, we note that we have considered each argument individually and collectively with the others and remain unpersuaded that the trial court abused its discretion by granting Tobey's motion for terminating sanctions.

Rather, as Tobey asserts, this case is not unlike that in Housing Authority v. Gomez (1972) 26 Cal.App.3d 366, in which the court stated:

"The evidence in this case establishes both a wilful failure to appear and be deposed pursuant to the stipulation of counsel and disobedience of a court order. Under the circumstances here present, the trial court could justifiably conclude that [the offending party] had no intention of being deposed and would continue to engage in evasive tactics to achieve that end. The trial court clearly did not abuse its discretion in striking the [offending party's pleadings] and entering [the offending party's] default." (Housing Authority, supra, at pp. 372-373.)

Like the court in Housing Authority, we conclude the trial court in this case did not abuse its discretion by granting Tobey's motion for terminating sanctions and striking the Petition.

III

Orders Denying Stretton's Motions

Stretton contends the trial court erred by issuing orders denying her motions for sanctions against Tobey and Freeburn, for special accommodations, and for change of venue. However, her notice of appeal filed on July 1, 2005, did not challenge those orders.

On May 6, 2005, the trial court issued five separate written orders: (1) an order granting Tobey's motion for terminating sanctions against Stretton; (2) an order denying Stretton's motion for section 575.2 sanctions; (3) an order denying Stretton's motion for section 2023 sanctions; (4) an order denying Stretton's motion for special accommodations; and (5) an order denying Stretton's motion for change of venue. Her July 1, 2005 notice of appeal states Stretton: "hereby appeals from the order sanctioning her under . . . section 2023.030(d), to wit: striking the petition of Diane Stretton for probate of the alleged last will of the decedent, Clara Richardson." Because that notice of appeal did not challenge the separate orders of the trial court denying Stretton's motions for sanctions, special accommodations, and change of venue, we are without jurisdiction to consider her challenges of those orders.^[12] ( 906; Cal. Rules of Court, rules 8.100(a), 8.104(a); Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239-240.)

IV

Order Denying Stretton's Motion for Reconsideration

Although Stretton's notice of appeal filed on August 17, 2005, challenged the trial court's August 5 order denying her motion for reconsideration of its order granting Tobey's motion for terminating sanctions, her opening brief omits any substantive legal analysis or argument showing the trial court erred in denying her motion for reconsideration. Accordingly, we conclude she has waived that issue on appeal and do not address it. "Where a point is merely asserted by counsel without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783, overruled on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) "Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see also Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention was deemed waived because "[a]ppellant did not formulate a coherent legal argument nor did she cite any supporting authority"]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 ["The dearth of true legal analysis in her appellate briefs amounts to a waiver of the [contention] and we treat it as such."].)

Furthermore, an order denying a motion for reconsideration is not an appealable order. (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1229-1230.)

DISPOSITION

The orders are affirmed. Respondents are entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

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^[1] Richardson's husband John predeceased her.

^[2] However, Tobey's counsel never received Stretton's objections.

^[3] At the hearing, Tobey's counsel objected to a requirement that the deposition be held at Stretton's home, arguing that Stretton lived in Riverside and it would be costly to Tobey to hold the deposition there. Neither Stretton's counsel nor any other person at the hearing corrected that statement regarding the location of Stretton's home, supporting an inference that the court and all counsel presumed Stretton resided in Riverside. Our independent review of the record on appeal shows that a specific Riverside address was often listed for Stretton on pleadings and other documents filed before January 24, 2005. For example, on April 1, 2003, Stretton personally signed a form acknowledging the duties and liabilities of a personal representative, which form stated: "My address and telephone number are (specify): 600 Central Ave., Apt. 339, Riverside, CA 92507 [we omitted the stated telephone number for privacy reasons]."

^[4] On February 22, the trial court issued a written order granting Roberts's motion to be relieved as Stretton's counsel.

^[5] Stretton could not specifically describe her pain.

^[6] As discussed in part III, post, on May 6 the trial court also issued separate written orders denying Stretton's motions for sanctions, special accommodations, and change of venue.

^[7] Exhibit A to Tobey's request for judicial notice is a copy of the trial court's (San Diego County Superior Court Judge Lisa Guy-Schall) 27-page statement of decision dated January 6, 2006, in case No. GIN018563, which was a separate action filed by Stretton against the estates of John Richardson and Clara Richardson and their respective special administrators. However, because that order was issued in a different case and after the orders appealed in this case, we decline to exercise our discretion to take judicial notice of that statement of decision. Accordingly, we deny Tobey's request for judicial notice of Exhibit A.

^[8] For example, Tobey argues Stretton did not provide an adequate record on appeal and her corrected opening brief did not merely delete exhibits as ordered, but also improperly added material.

^[9] All statutory references are to the Code of Civil Procedure.

^[10] Section 2023.010 was enacted effective July 1, 2005, replacing former section 2023, subdivision (a). (Cal. Law Revision Com. com., reprinted at 21A, pt. 1 West's Ann. Code Civ. Proc. (2007 ed.) foll.  2023.010, p. 37.)

^[11] The record shows Stretton repeatedly asserted she lacked sufficient financial resources. In particular, on April 11, 2005, Stretton filed a motion for change of venue in which she stated: "I am indigent . . . ." Also, on April 11, she filed a motion for special accommodations in which she stated: "Since I am proceeding in forma pauperis, [I] cannot afford to pay anyone to prepare the brief on my behalf." Therefore, the trial court could reasonably conclude any monetary sanction imposed against Stretton would be ineffective to obtain her discovery compliance. Similarly, the trial court could have concluded an evidentiary sanction would have been ineffective because, absent full discovery by Stretton, Tobey and Freeburn would not have known what information and documents Stretton was withholding from them. Also, an issue preclusion sanction presumably would have had the same effect as the terminating sanction imposed by the trial court (i.e., striking of the Petition). Accordingly, the trial court could reasonably conclude any lesser sanction than a terminating sanction would have been inadequate.

^[12] In any event, were we to consider Stretton's challenges of the trial court's orders denying her motions for sanctions, special accommodations, and change of venue, it is doubtful we would be persuaded by Stretton's arguments that the court abused its discretion or otherwise erred by denying those motions.