McAlpine v. Peinado

Filed 4/21/06 McAlpine v. Peinado CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Rene Peinado appeals an order denying his motion under Code of Civil Procedure section 473,^[1] by which he sought to vacate a discovery order that imposed a terminating sanction and a resulting default judgment that was entered against him and in favor of the plaintiff, Michael Peter McAlpine. He contends the court below erred in denying his motion to vacate, and that the default judgment is in any event reversible as one that imposes excessive punitive damages. After careful review of the court's record, we affirm.

Background

On September 13, 2001, McAlpine filed a complaint against Peinado and four limited liability companies allegedly formed by Peinado (the LLC's). The complaint alleged, in three causes of action for breach of contract and one common count, that the defendants breached four contracts by failing to make timely and full payments for services and materials that McAlpine had provided in connection with three construction projects. A fifth cause of action alleged that McAlpine had suffered damages after Peinado made a fraudulent promise of payment in order to induce McAlpine to remove a mechanics lien that he had placed on one of the properties where he had provided services. The prayer sought compensatory damages in the amount of $192,770.73, interest, reasonable attorney fees recoverable under two of the contracts, costs and interest as provided by law, and an unspecified amount of punitive damages for Peinado's fraudulent actions.

In June 2002, Peinado substituted Michael Guglielmino as his counsel of record. Guglielmino immediately filed a motion for relief from a default entered following Peinado's failure to file a timely answer. The trial court granted this motion and Peinado filed his answer in August 2002.

McAlpine, in February 2003, propounded a request for the production of documents directed to Peinado individually. There was no response. In March 2003, McAlpine filed a motion for an order to compel Peinado to respond to this request, and to impose a monetary sanction for his initial failure to provide a timely response. (See § 2031.300, subds. (b), (c).) The trial court held a hearing on this motion April 24, 2003, and on May 7, 2003, filed an order granting the motion and ordering Peinado both to respond to McAlpine's request for documents and to pay a monetary sanction of $500. There was no compliance with the order. Subsequently, on June 24, 2003, McAlpine served and filed a motion requesting that the trial court impose both a terminating and a monetary sanction for Peinado's failure to obey the order compelling a response. (See § 2031.300, subd. (c).) The date set for hearing on this motion was July 29, 2003, and McAlpine served the notice of the motion on Peinado's attorney of record, Guglielmino.

Meanwhile, eight days before this scheduled hearing, Peinado filed a second substitution of attorney, in which he replaced Guglielmino with himself, in propria persona.

Peinado filed no opposition to McAlpine's motion for terminating and monetary sanctions, nor did he appear at the hearing on the motion. The court accordingly entered an order on August 12, 2003, directing that Peinado's answer be stricken and imposing another monetary sanction of $500 payable to McAlpine.

Peinado filed his third substitution of attorney on August 21, 2003, replacing himself with Jeffrey Chen. That same day Chen filed a motion for reconsideration of the sanction order of August 12, 2003. Peinado averred the following â€