Castillo v. McCreary
| Decision Date | 21 February 2023 |
| Docket Number | B317493 |
| Parties | RUTH CASTILLO Plaintiff and Respondent, v. DUNCAN J. McCREARY, Objector and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No BC701497, Mel Red Recana, Judge.
McCreary and Duncan J. McCreary, in pro. per., for Objector and Appellant.
Law Offices of Gavril T. Gabriel and Gavril T. Gabriel, for Plaintiff and Respondent.
Appellant Duncan J. McCreary is the attorney for Nissani Bros Chrysler, Chevrolet Nissani Bros., and HK Automotive, Inc. (collectively, defendants), defendants in a lawsuit brought by respondent Ruth Castillo. After defendants repeatedly failed to appear at depositions noticed by Castillo, the trial court imposed monetary sanctions against defendants and McCreary pursuant to Code of Civil Procedure section 2025.450.[1]
We conclude that section 2025.450 did not authorize monetary sanctions against McCreary based on defendants' failures to appear at the depositions. We therefore reverse the order imposing monetary sanctions against McCreary.
Castillo filed a complaint for breach of contract and related causes of action against several car dealerships, including defendants. At all times relevant here, McCreary represented defendants in the lawsuit.
Castillo initially noticed the depositions of defendants' persons most knowledgeable for November 6 and 7, 2019.[2] For reasons not clear from the record, Castillo's counsel took those depositions off calendar. After McCreary failed to provide available dates to schedule the depositions, Castillo filed motions to compel the depositions.
Hoping to resolve the matter informally, Castillo later took the motions off calendar and re-noticed the depositions of Nissani Bros. Chrysler and Chevrolet Nissani Bros. for December 12, 2019. But McCreary never confirmed his or his clients' availability for those dates, so Castillo took those depositions off calendar too.
Castillo re-noticed the depositions for January 23, 2020. Once again McCreary failed to confirm defendants' availability for the depositions, so once again Castillo took the depositions off calendar.
Castillo then rescheduled the depositions of Nissani Bros. Chrysler and Chevrolet Nissani Bros. for June 16, 2020, and the deposition of HK Automotive, Inc. for June 18, 2020.[3] McCreary and defendants failed to appear at those depositions.
Hence, Castillo re-noticed the depositions for June 23, 2020. Again, neither McCreary nor defendants appeared.
Finally, Castillo re-noticed the depositions for July 21, 2020, after McCreary confirmed that he and defendants were available on that date. However, McCreary emailed Castillo's counsel on the date of the depositions stating that McCreary had been "trying to confirm with" his client representatives but "[t]hey are not calling [him] back," and that McCreary was "unsure what is going on." Although McCreary appeared at the depositions, his clients did not.[4]
Relying on section 2025.450, Castillo filed motions seeking to compel the deposition attendance of defendants' persons most knowledgeable and monetary sanctions against defendants and McCreary.
Nissani Bros. Chrysler and Chevrolet Nissani Bros. opposed the motions.[5] They submitted the declaration of their person most knowledgeable, who stated that she was unable to attend the depositions on July 21, 2020, "because the dealership was shut down due to an outbreak of COVID-19 amongst the employees and [she] could not access the login from [her] home."[6]They also argued that section 2025.450 did not authorize the trial court to impose monetary sanctions on McCreary based on defendants' failures to appear at the depositions.
At the hearing on Castillo's motions, the trial court ordered the parties to meet and confer about scheduling the depositions and continued the hearing. At the continued hearing, the parties advised the court that they had scheduled the depositions for August 24, 2021. The court thus continued the hearing again.
On August 20, 2021, four days before the scheduled depositions, McCreary emailed Castillo's counsel and asked to reschedule the depositions because, according to McCreary, defendants' person most knowledgeable had "been rushed to the hospital due to complications with COVID-19." The depositions did not proceed on August 24, 2021.
A week later, Castillo's counsel filed a declaration stating that he had asked McCreary for evidence of the deponent's hospital admission, but that he had not received any such evidence. The next day, McCreary filed a declaration stating that the deponent was unable to attend the depositions "due [to] being in the hospital with COVID-19." McCreary attached the deponent's purported "medical records" to his declaration. Attached were two screen shots from an unidentified site providing almost no information, and which failed to clearly indicate that the deponent had been admitted to the hospital.
Following the continued hearing on Castillo's motions to compel, the trial court ordered monetary sanctions of attorney fees and costs against McCreary and defendants jointly and severally in the total amount $6,577.42.[7] The trial court's order does not cite any statutory or other authority in support of its imposition of sanctions.
McCreary argues that section 2025.450, the discovery statute Castillo relied upon in seeking monetary sanctions, authorizes such sanctions only against the deponent or party affiliated with the deponent. He contends that the trial court therefore erred by imposing monetary sanctions on him for defendants' failures to appear at the depositions.[8]
Before we address the merits of McCreary's appeal, we briefly address the timeliness of his notice of appeal. Although no party raised the issue, we raised the issue sua sponte and asked for supplemental briefs. (See Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849 [].)
The timeliness of McCreary's notice of appeal is governed by California Rules of Court, rule 8.104.[9] Subsection (a)(1) provides that "[u]nless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment." (Rule 8.104(a)(1)(A)-(C).) "As used in (a) . . . 'judgment' includes an appealable order if the appeal is from an appealable order." (Rule 8.104(e).) "The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes." (Rule 8.104(c)(2).)
The appealable order here is the trial court's September 3, 2021 minute order imposing sanctions. (See § 904.1, subd. (a)(12) []; Lindsey v. Conteh (2017) 9 Cal.App.5th 1296, 1302.) The minute order states it is "signed and filed this date," but is not filed-endorsed.[10] The minute order states, The certificate of mailing is filed-endorsed September 3, 2021, and states that the minute order was served on McCreary and Castillo's counsel on September 7, 2021.
McCreary filed his notice of appeal on December 17, 2021, more than 60 days after the trial court served the minute order, but less than 180 days after entry of the minute order. Thus, if the trial court's service of the minute order triggered Rule 8.104(a)(1)(A), McCreary's appeal is untimely. If not, McCreary's appeal is governed by Rule 8.104(a)(1)(C) and therefore timely.
Our Supreme Court has explained that, at least for some purposes, we may treat a minute order and attached certificate of mailing as a single document. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905 (Alan).) In Alan, the superior court clerk mailed the parties two documents in a single envelope-a file-stamped copy of a statement of decision denying class certification, and a minute order without a file stamp which described the issuance of the statement of decision and showed the date it and the statement of decision were mailed. (Id. at p. 898.) Alan held the clerk's mailing did not trigger former Rule 8.104(a)(1)[11] because the file-stamped statement of decision was not an appealable order, and the appealable minute order, which showed the date it was mailed, was not file-stamped. (Id. at pp. 901-902.)
Alan instructed that former Rule 8.104(a)(1) "require[s] a single document-either a 'Notice of Entry' so entitled or a file-stamped copy of the judgment or appealable order-that is sufficient in itself to satisfy all of the rule's conditions, including the requirement that the document itself show the date on which it was mailed." (Alan, supra, 40 Cal.4th at p. 905.) Relevant here, however, Alan further explained as follows: ...
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