Marshall v. Barrett
Filed 10/25/07 Marshall v. Barrett CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
LARRY MARSHALL, Plaintiff and Respondent, v. ELLEN BARRETT, Defendant and Appellant. | H030879 (Santa Clara County Super. Ct. No. CV811885) |
This is a personal injury action brought by Larry Marshall who was permanently disfigured and lost the sight in one eye. Ellen Barrett, the appellant herein, was convicted and sent to prison for shooting Marshall with a shotgun at close range. Barrett was sentenced to prison and while serving her prison term was sued by Marshall for personal injuries. There are numerous instances of applications to the court below for orders requiring the defendant to comply with requests for admissions and to file answers to interrogatories. Moreover, Barrett refused to complete her deposition and failed or refused to submit to further deposition questioning leading Marshall to move the court for an order terminating sanctions. That order was granted on October 25, 2006. Notice of entry of judgment was served and filed on October 28, 2006. Barrett purports to appeal from that order and filed her notice of appeal on October 30, 2006.
She claims in her appeal that she was deprived of life, liberty or property without due process of law and says specifically that she was not present at the hearing on Marshalls sanctions motion because: The court was on notice that Barrett had a doctors note that Barrett was sick and on medication which caused drowsiness at the time scheduled to finish the deposition. Barrett has a perfectly legitimate reason not to have attended the deposition on 8-2-06. Barrett was sick, had doctor verification, had antibiotics and medication which warned it Causes Drowsiness which were prescribed for her. Proving she had an infected sore throat. Barretts throat was painful, horse and audibility a factor. Barrett was also drowsy. In no condition to give testimony.
The respondent claims that because appellant retained counsel after that hearing and brought a motion to vacate the order and resulting judgment which motion was denied on January 16, 2007, that her appeal should have been from that order rather than the order and judgment resulting from the motion for terminating sanctions. While neither the record or appellants brief is clear on this, we will proceed to determine the case on the merits rather than on respondents procedural claim. Suffice it to say that appellant Barrett, acting as her own lawyer does identify the order of August 25, 2006, filed on August 28, 2006, as the order from which her appeal is taken.
The October 30, 2006 notice of appeal was premature because the order granting terminating sanctions did not become appealable until after the final judgment was entered on November 1, 2006. On January 9, 2007, this court, on its own motion entered an order deeming the notice of appeal filed as of the date of the judgment.
Wide discretion reposes in the trial court on questions of discovery. A trial court must have broad powers to enforce orders and those orders will be presumed correct and will not be disturbed in the absence of an abuse of discretion. We go so far as to say that even if we disagree with the trial courts conclusion, we are not free to substitute our discretion thereby. (Avant Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.) However, we have no occasion to disagree with the courts ruling on the motion. The court was at pains to state his reasons and set forth the factual basis therefore in some detail. In the courts January 16, 2007 order, the court said: Over the past two years, Defendant has repeatedly failed to appear at her deposition. Defendantwhile acting in pro personaalso stated to Correction Officer Kailes that her attorney advised her to not cooperate with the deposition, indicating Defendants intent to directly violate the July 7th Order.
Disposition
The judgment is affirmed.
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RUSHING, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.
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