Filed 11/28/17 Creed-21 v. City of Wildomar CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

CREED-21,
Plaintiff and Appellant,

E066367

v.

(Super.Ct.No. RIC1504199)

CITY OF WILDOMAR,

OPINION

Defendant and Respondent;
WAL-MART REAL ESTATE
BUSINESS TRUST,
Real Party in Interest and
Respondent.

APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.
Affirmed.
Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and
Appellant.
Manatt, Phelps & Phillips, Keli N. Osaki; Burke, Williams & Sorensen, Thomas
D. Jex and Amy E. Hoyt for Defendant and Respondent.
1

 Manatt, Phelps & Phillips, Keli N. Osaki; Burke, Williams & Sorensen, Thomas
D. Jex and Amy E. Hoyt for Real Party in Interest and Respondent.
Plaintiff and Appellant Creed-21 appeals from the dismissal of its petition for writ
of mandate and complaint for declaratory and injunctive relief under the California
Environmental Quality Act (Petition). The trial court imposed an issue sanction on
standing, which terminated the action, for the misuse of the discovery process in response
to a motion for sanctions pursuant to Code of Civil Procedure section 2023.0301 filed by
real party in interest and respondent Wal-Mart Real Estate Business Trust (Wal-Mart).
We conclude the trial court did not abuse its discretion in imposing the terminating
sanction.
FACTUAL AND PROCEDURAL HISTORY
A.

PROCEDURAL HISTORY
1.

COMPLAINT

On April 8, 2015, Creed-21, represented by the Briggs Law Corporation,
specifically attorney Anthony Kim, filed its Petition. Creed-21 alleged it was a nonprofit, social-advocacy organization formed and operating under the laws of California
and that at least one member resided in or near defendant and respondent City of
Wildomar (City).

1

All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.

2

 The project being challenged was a 185,682 square foot Walmart retail complex
(the Project) located in the City. On March 11, 2015, the City’s council approved the
Project. Creed-21 alleged that the Project violated CEQA and other laws. Creed-21
alleged against the Wal-Mart and the City (collectively, the Wildomar Defendants) that
they failed to prepare an adequate environmental impact report and they violated the
planning and zoning law within the meaning of Government Code section 65860. Creed21 sought to stop the Wildomar Defendants from taking any action on the Project until
they complied with CEQA and the planning and zoning laws.
City filed an answer to the Petition. City alleged that Creed-21 did not have
standing to bring the action. The trial court set a briefing schedule with Creed-21’s
opening brief due December 24, 2015; the Wildomar Defendants’ joint opposition brief
due January 25, 2016; and Creed 21’s reply brief being due on February 15, 2016.
2.

WAL-MART’S FIRST MOTION TO COMPEL DEPOSITION AND
DOCUMENT PRODUCTION

On or about November 20, 2015, Wal-Mart filed a motion to compel pursuant to
section 2025.450, subdivision (a) seeking an order to have Creed-21’s person most
qualified (PMQ) appear for a deposition. It also sought monetary sanctions. It sought a
hearing on January 5, 2016, and the deposition to take place no later than January 12,
2016. Wal-Mart alleged that Creed-21’s PMQ had refused to appear for a deposition
despite proper notice and without substantial justification. It could not adequately defend
against Creed-21’s conclusory allegation that it had standing to pursue the lawsuit
without such deposition.
3

 Wal-Mart was informed and believed that Creed-21 was a shell corporation, which
consisted of two members including Richard Lawrence, who lived in San Diego. The
address utilized by Creed-21 as its place of business was the Briggs Law Corporation.
Creed-21 had no assets, and in prior lawsuits in which money was awarded to Creed-21,
the money was given to the Briggs Law Corporation. Depending upon the testimony of
the PMQ, Wal-Mart would challenge Creed-21’s standing in its opposition to the
Petition. Wal-Mart insisted that discovery was proper in the administrative mandamus
proceeding to challenge standing. In addition, it sought all of the documents related to
the corporation.
Wal-Mart had served Creed-21 with its initial deposition notice on August 25,
2015. It also requested documents pertaining to the corporation. The deposition was set
for September 15, 2015, in Costa Mesa. Creed-21 objected to the deposition date, that
discovery was not appropriate in a mandamus proceeding, and that the deposition
location was 75 miles from the PMQ’s residence. Wal-Mart sent a meet and confer letter
to the Briggs Law Corporation, specifically Cory Briggs and Kim. Wal-Mart requested
the PMQ’s address so that a location for the deposition could be found closer to the
PMQ’s home. Wal-Mart received no response. Wal-Mart sent several emails to Kim but
received no response. Wal-Mart scheduled another deposition for October 14, 2015.
Creed-21 again objected on the same grounds as the first objection and advised Wal-Mart
that the PMQ would not appear at the deposition. Creed-21 refused to submit the PMQ
for the deposition.

4

 Briggs responded to Wal-Mart’s counsel on October 8, 2015, indicating that he
had been in trial. Briggs stated that Wal-Mart was not allowed to conduct discovery and
that Creed-21 had standing as a public-interest organization enforcing public duties; its
membership was irrelevant; and the good standing of the corporation could be verified
with the California Secretary of State. Briggs recommended letting the trial court decide
the issue. He recommended that either Wal-Mart file a motion to compel, or he would
file a motion for a protective order. Wal-Mart responded it would file the motion to
compel.
To the motion to compel, Wal-Mart attached a reporter’s transcript for case No.
BC131065 in Los Angeles Superior Court, Creed-21 v. City of Glendora, of a hearing
conducted on July 6, 2015. Creed-21 was represented by Briggs Law Corporation.
Lawrence testified that he was the President of Creed-21. There was only one other
officer in Creed-21. Briggs Law Corporation prepared all the tax returns for Creed-21.
The address for Creed-21 was Briggs Law Corporation in Upland. Lawrence had no idea
how many members of Creed-21 existed. Lawrence indicated Creed-21 had no money
and no employees. Briggs Law Corporation fronted the money for any lawsuits it filed.
It also paid any fees owed by Creed-21. Creed-21 had no assets.
Creed-21 filed opposition to the motion to compel the PMQ’s deposition. Creed21 alleged there were additional members of the corporation. Further, there was no
discovery allowed in administrative mandamus proceedings; the proceedings were
limited to the administrative record, which is the only evidence relevant to determine the
issue of whether the law was followed. Creed-21 argued that even issues of standing did
5

 not require discovery. The Petition had properly alleged there were members in
Wildomar and there was no further issue as to standing. Even considering Lawrence’s
testimony in a separate proceeding, Lawrence acknowledged other members in Creed-21
but did not know their names.
Wal-Mart filed its reply. It advised the trial court it only sought to conduct
discovery to determine standing and nothing in Creed-21’s opposition negated that WalMart could conduct discovery.
The matter came on for hearing on January 5, 2016. The trial court issued a
tentative ruling that Creed-21 was to produce the PMQ for deposition and produce all
requested documents within 10 court days of the ruling. Wal-Mart was awarded $3,000
in attorney fees and costs. The court found, “[P]etitioner repeatedly has failed to provide
the home address of its PM[Q] or otherwise establish that the Costa Mesa location
exceeds the permissible geographical limits of CCP § 2025.250(a). The names of
individual members which appear in produced documents are to be redacted.” The
hearing is not part of the record. Kim appeared for Creed-21. The final ruling of the trial
court was as follows: “Following the appearances of counsel at the hearing on the
Motion, Walmart objected to the form of CREED-21’s notice of intent to appear at the
hearing, which was done via email as opposed to telephone or in person. The Court
agreed with Walmart’s objection and held that the tentative ruling on the Motion issued
on January 4, 2016, is the final ruling.”

6

 3.

CREED-21’S MOTION FOR RELIEF FROM ORDER ON MOTION
TO COMPEL

On January 12, 2016, Creed-21 sought relief from the order on the motion to
compel based on the mistake, inadvertence or excusable neglect on the part of its counsel.
Creed-21 acknowledged that its counsel, Kim, had notified Wal-Mart via email that it
was seeking to appear at oral argument, and that according to Riverside County Superior
Court local rules that notification was to be conducted by telephone. Creed-21’s counsel
was unaware of the local rule. If counsel had been granted oral argument, he would have
argued that discovery was not appropriate. Creed-21 for the first time alleged that the
PMQ was Lawrence, who resided 90 miles from Costa Mesa. Kim submitted his
declaration acknowledging not being aware of the local rule.
Creed-21 submitted a copy of its opening brief in the action with the motion for
relief from order on motion to compel, which had been filed on or about December 24,
2015. Creed-21 alleged several deficiencies in the environmental impact report including
that it did not properly address traffic concerns, it failed to address impact on the other
surrounding stores, and its analysis of air quality issues was insufficient. Creed-21
presented the declaration of Ruby J. Jimenez signed on December 21, 2015, who declared
that she lived and worked in Wildomar along with other members of Creed-21.
Wal-Mart filed a response to the motion for relief from order on motion to compel,
arguing there was no valid basis for the motion. Kim’s failure to check the local rules
was professional incompetence and not a mistake that justified relief. Any request to
reconsider the motion to compel was also not supported by new facts or law. Wal-Mart
7

 submitted correspondence with Creed-21’s counsel since January 5, 2016, seeking to set
the deposition of the PMQ. No response had been received from Creed-21. Creed-21
filed a response essentially rearguing the reasons relief should be granted.
On January 19, 2016, the Wildomar Defendants filed an ex parte application to
provide supplemental briefing 10 days after the PMQ had been deposed to supplemental
its opposition to the Petition. The Wildomar Defendants did not want to extend the
briefing deadline for its opposition brief because the Project was on hold while the
litigation was pending.
The ex parte application was heard on January 20, 2016. Creed-21 argued that in
its opening brief it had proved standing by naming a member who lived in Wildomar.
Moreover, the Wildomar Defendants sought to depose the PMQ, who was Lawrence, not
Jimenez. The Wildomar Defendants had sufficient knowledge of standing to file their
opposition brief.
At the hearing on Creed-21’s motion for relief from order on motion to compel
deposition held on February 1, 2016, the trial court determined that it was going to deny
the relief and the deposition was to go forward. Kim stated that Briggs had a family
emergency and Briggs was the attorney who would defend the deposition. Accordingly,
the deposition needed to be extended to February 22, 2016, and Creed-21 would agree to
extend the date the opposition brief to the Petition was due. The trial court advised Kim
to agree to the deposition on February 8 and to make an ex parte application if the date
did not work. However, any ex parte application would have to provide good cause to
continue the deposition.
8

 4.

CREED-21’S PETITON FOR WRIT OF MANDATE FILED IN THE
COURT OF APPEAL

Creed-21 filed a petition for writ of mandate for immediate stay in this court, case
No. E065323. Creed-21 argued that discovery was not appropriate in the action since it
involved CEQA and also intruded on the privacy of Creed-21 members. Creed-21
claimed that if this court did not stay the matter, it would be forced to disclose
constitutionally protected material. It sought for this court to either (1) issue an
alternative writ of mandate commanding the trial court to vacate its February 1, 2016
order, and either deny the discovery motion altogether or narrow the discovery; (2) issue
a writ of prohibition commanding the trial court to take no further action on its February
1, 2016, order; or (3) hold a hearing. On February 5, 2016, this court denied the petition
for writ of mandate and request for automatic stay without a hearing.
5.

CREED-21’S EX PARTE APPLICATION TO EXTEND
DEPOSITION

On February 3, 2019, Creed-21 filed an ex parte application seeking to vacate the
trial court’s order setting the PMQ’s deposition on February 8, 2016. It sought to extend
the deadline to February 24, 2016. The application was submitted on the basis that
Briggs’s parent had undergone major surgery on February 3, and Briggs had to stay with
the parent for the following three weeks. Briggs submitted a declaration that he was the
only child of his parent who could provide care. His parent would need care for three
weeks. Briggs was unable to perform his normal work duties for those three weeks.

9

 Wal-Mart opposed the ex parte application. Wal-Mart noted that it had originally
noticed the deposition of the PMQ on September 5, 2015. Since that time, Creed-21 had
refused to produce the PMQ for deposition and submit the requested documents despite
two court orders to comply with discovery requests. Creed-21 sought to extend the time
for the deposition past the date that the Wildomar Defendants’ opposition brief was due.
Creed-21 had failed to establish good cause for the extension. The declaration provided
by Creed-21 did not explicate why Kim could not defend the deposition. Kim had filed
all of the documents in the case and appeared at all of the hearings. Further, Briggs’s
declaration did not explain why Briggs could not attend a one-day deposition.
The trial court heard the matter on February 4, 2016. Kim was present and
advised the trial court that Briggs’s father had undergone surgery the day prior to the
hearing. Briggs was the only child who was able to care for his father. The trial court
inquired whether a caregiver could stay with Briggs’s father for one day while the
deposition took place. Kim indicated that he did not know the details and did not know if
a caregiver could be found.
The trial court ruled that “[w]ithout a showing that literally nothing else is
available, I’m not going to continue this again. This had been dragged out and dragged
out.” The trial court found the Wildomar Defendants were entitled to get the case
moving. The trial court expressed that caregivers should be available. Moreover, the
documents requested by the Wildomar Defendants should have been produced. The trial
court denied the ex parte application to continue the deposition.

10

 6

THE WILDOMAR DEFENDANTS’ OPPOSITION BRIEF

On February 22, 2016, despite the discovery process not being complete as set
forth ante, the Wildomar Defendants filed their opposition brief to the Petition. They
alleged that the Petition should be denied both procedurally and on the merits.2 They
alleged that Creed-21 had failed to produce their PMQ for deposition on February 8,
2016. Creed-21 was a shell corporation that Briggs used to recover attorney fees from
large corporations. Creed-21 had filed over 100 lawsuits and Briggs Law Corporation
had received all the proceeds from these actions. The Wildomar Defendants argued that
Creed-21 had two members: Lawrence, and Karin Langwasser, who was Briggs’s
cousin; Creed-21 did not have a bank account or assets; its address was Briggs Law
Corporation; and Briggs Law Corporation received all the proceeds from lawsuits and
handled all of the tax filings and corporate filings. The Wildomar Defendants argued it
would be inequitable for Creed-21 to maintain the action. They also insisted that the
declaration submitted by Jimenez did not change the result. There was no indication as to
when Jimenez joined Creed-21, but it appeared after July 6, 2015, as Lawrence had
testified on that date that there were only two members of Creed-21. Additionally, it did
nothing to change the fact that the Briggs Law Corporation was “the alter ego of
CREED-21.”

2

We need not address the merits as the trial court dismissed the action based on

standing.

11

 7.

CREED-21’S REPLY BRIEF IN SUPPORT OF THE PETITION

Creed-21 filed its reply brief in support of the Petition on March 7, 2016. Creed21 alleged it was not a sham corporation set up only for attorney fees. Lawrence testified
at the prior hearing that there were other members whom he did not know. The
opposition brief ignored that Jimenez was a member of Creed-21 and she worked and
lived in Wildomar. Creed-21 showed standing by providing the declaration of Jimenez.
Moreover, the work Briggs Law Corporation performed for Creed-21 were routine
functions carried out by attorneys for their clients.
Kim submitted a declaration that when Briggs returned to work after caring for his
parent, he immediately contacted Wal-Mart to set up the deposition of the PMQ and
produced all of Creed-21’s corporate documentation.
8.

MOTION FOR ISSUE AND MONETARY SANCTIONS

On March 9, 2016, Wal-Mart filed a motion against Creed-21 for issue and
monetary sanctions for violations of discovery orders. It sought the imposition of an
issue sanction establishing that Creed-21 lacked standing to bring the action and an award
of attorneys’ fees in the amount of $13,455 against Creed-21 and Briggs Law
Corporation. The motion was brought pursuant to sections 2023.030, subdivisions (a)
through (b), 2025.450, subdivision (h) and 2025.480, subdivision (k) on the grounds that
Creed-21 willfully failed to obey the trial court’s orders issued on January 5 and February
1, 2016 compelling it to produce the PMQ for deposition on the standing issue.

12

 Wal-Mart alleged that Creed-21’s obstructionist conduct caused it to not be able to
adequately address standing in its opposition brief and caused thousands of dollars of
costs and attorney fees to be incurred. Creed-21’s refusal to produce the PMQ required
the trial court to reach the conclusion that Creed-21 lacked standing.
When Briggs returned to the office after attending to his parent’s illness, he
offered a deposition date that was one business day before the Wildomar Defendants’
opposition brief was due. This “eleventh hour” attempt to produce the PMQ for
deposition did not alter the fact that Creed-21 had already disobeyed two court orders.
The Wildomar Defendants did not want to agree to a continuance of the opposition brief
due date because of the previous failures by Creed-21 to produce the PMQ. Wal-Mart
alleged that an order precluding the claim was an appropriate sanction even if it
effectively terminated the case.
Creed-21 filed its opposition to the motion for imposition of sanctions. Creed-21
insisted that “instead of extending professional courtesy” to its counsel, Wal-Mart was
taking advantage of counsel’s family emergency by requesting sanctions and dismissal of
the action. Once Briggs returned to work, he had attempted to schedule the deposition
and provided all the requested documents. Creed-21 also argued that dismissal of the
entire action was only appropriate if Wal-Mart showed that Creed-21 had acted in bad
faith.

13

 Wal-Mart filed a response to the opposition alleging that the trial court had already
rejected the excuses based on Briggs’s family emergency in denying the prior ex parte
applications. Wal-Mart alleged that Creed-21 persistently and outright refused to comply
with its discovery obligations, which supported the sanction of dismissal of the case.
Creed-21 had violated the discovery orders and its late effort to produce the PMQ did not
alter the facts. Wal-Mart was not required to show bad faith; it need only show persistent
refusal to comply with discovery. Further, the dismissal was at the discretion of the trial
court.
9.

RULING

The motion for sanctions was heard on April 4, 2016. The trial court noted that it
had not attempted to put together a tentative opinion. It found that the Wildomar
Defendants were not trying to take advantage of a family emergency. The trial court
found on the part of Creed-21 “a calculated attempt to delay and to avoid a deposition
beginning perhaps as early as last August, September when the first deposition was set.”
The trial court found it was impossible to determine whether the objection that the
deposition was set more than 75 miles from the deponent had merit because no address
for the deponent had been provided.
The trial court found that the Wildomar Defendants had tried to work with Creed21 but got nowhere. Creed-21 did not show good faith in trying to resolve the issues.
Creed-21 would not agree to the deposition without a court order and continued to raise
the same objections. There were no attempts to change the date of the deposition but
rather a reliance on a motion for relief from the order on the motion to compel, setting the
14

 deposition beyond the date that the opposition brief was due from the Wildomar
Defendants. The motion for relief provided no new information and was a “[c]omplete
waste of everyone’s time.”
Further, the trial court had ordered that the deposition be scheduled and Creed-21
responded for the first time that Briggs’s family member needed constant medical care.
The trial court advised Kim at the hearing that if an extension was needed, there needed
to be a showing that no one else could care for Briggs’s father. No such showing was
made and a writ was sought in the appellate court. There was no compliance with the
trial court’s orders even after a denial by the appellate court.
The trial court further questioned how Briggs’s family situation precluded a
deposition from being taken. The “cursory” declaration from Briggs did not explain how
there was no possible way he could attend the deposition. Thereafter, the court
confirmed that Creed-21 had not paid Wal-Mart the $3,000 sanction previously imposed
by the trial court. The trial court concluded its tentative, “Adding that into the equation,
as well, I see that there’s no sanction that is going to result in achieving what defense was
attempting to achieve when they first noticed the deposition. Nothing has worked.
Multiple orders have been made. Sanctions have been imposed. Nothing except further
delay in the proceedings. And I don’t think at this point in light of the history, the
defense should have to choose between getting this deposition and delaying the hearing
on the merits.”

15

 Kim responded that when Creed-21 got the notice of deposition, it did not believe
that discovery was permitted. Creed-21 wanted a court order that discovery was
appropriate. Kim also indicated that when Briggs returned to the office, he immediately
contacted Wal-Mart about setting up the deposition and extending the time for briefing.
The trial court found that the Wildomar Defendants did not have to believe Briggs
would have the PMQ attend a deposition based on the history of the case. The trial court
ruled, “So the Court is going to stand with its tentative, and impose the issue sanction,
which in this case is the same as a terminating sanction. It’s really nothing more, with
the Court finding that Creed-21 lacks standing. I’m not going to order the imposition of
additional monetary sanctions.”
The order entering judgment dismissing the case was signed by the trial court and
filed on May 10, 2016. The order stated that the trial court had issued an issue sanction
against Creed-21 that it lacked standing in the action. The trial court denied any
additional monetary sanctions in favor of Wal-Mart. The Petition was denied in its
entirety and was dismissed. The Wildomar Defendants were to recover their costs. WalMart was to recover the $3,000 in sanctions already imposed on January 5, 2016. Creed21 filed a timely notice of appeal.
DISCUSSION
Creed-21 contends the “severe issue sanction” imposed by the trial court should
only be granted against a litigant who persists in outright refusal to comply with
discovery obligations. Creed-21 alleges that its counsel made numerous attempts to
calendar the deposition once his family emergency was resolved and turned over
16

 documentation. Moreover, the initial refusal to schedule the deposition was due to its
disagreement that discovery was warranted in the case, and once that issue was resolved,
counsel was faced with a family emergency that foreclosed being able to schedule the
deposition. Creed-21 claims that dismissal of the action required a showing of bad faith,
which was not supported by the evidence.
“Code of Civil Procedure section 2025.450, subdivision (d) authorizes a trial court
to impose an issue, evidence, or terminating sanction under Code of Civil Procedure
section 2023.030 if a party or party-affiliated deponent ‘fails to obey an order compelling
attendance, testimony, and production.’ Section 2023.030 authorizes a trial court to
impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions
against ‘anyone engaging in conduct that is a misuse of the discovery process.’ ”
(Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 (Doppes).)
Subdivision (d) of section 2023.030 provides, “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. [¶]
(2) An order staying further proceedings by that party until an order for discovery is
obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party.
[¶] (4) An order rendering a judgment by default against that party.”
“The discovery statutes evince an incremental approach to discovery sanctions,
starting with monetary sanctions and ending with the ultimate sanction of termination.
‘Discovery sanctions “should be appropriate to the dereliction, and should not exceed that
which is required to protect the interests of the party entitled to but denied discovery.” ’
17

 [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted:
continuing misuses of the discovery process warrant incrementally harsher sanctions until
the sanction is reached that will curb the abuse. ‘A decision to order terminating
sanctions should not be made lightly. But where a 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.’ ” (Doppes, supra, 174 Cal.App.4th at p. 992, fn. omitted, citing Mileikowsky v.
Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280, overruled on other grounds in
Mileikowsky v. West Hills Hosp. and Medical Center (2009) 45 Cal.4th 1259.)
The trial court may order a terminating sanction for discovery abuse “after
considering the totality of the circumstances: [the] conduct of the 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.)
“The question before us ‘ “is not whether the trial court should have imposed a
lesser sanction; rather, the question is whether the trial court abused its discretion by
imposing the sanction it chose.” ’ ” (Liberty Mutual Fire Ins. Co. v. LcL Administrators,
Inc. (2008) 163 Cal.App.4th 1093, 1105-1106.)
“We review the trial court’s order under the abuse of discretion standard and
resolve all evidentiary conflicts most favorably to the trial court’s ruling. We will reverse
only if the trial court’s order was arbitrary, capricious, or whimsical. It is appellant’s
burden to affirmatively demonstrate error and where the evidence is in conflict, we will
18

 affirm the trial court’s findings. [Citation.] We presume the trial court’s order was
correct and indulge all presumptions and intendments in its favor on matters as to which
it is silent.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224.)
Here, the first notice of deposition of the PMQ was issued on August 25, 2015, for
September 15, 2015. The Wildomar Defendants were concerned that Creed-21 was a
shell corporation that did not have standing to bring its action in Wildomar. Creed-21 did
not respond, even after Wal-Mart sent a meet and confer letter. Wal-Mart set a second
deposition for October 14, 2015. Creed-21 refused to have PMQ appear arguing no
discovery was appropriate in the action. Wal-Mart was forced to file a motion to compel.
On January 5, the trial court rejected Creed-21’s arguments and ordered that it
produce the PMQ for deposition and ordered sanctions in the amount of $3,000. The
Wildomar Defendants again attempted to schedule the deposition. Creed-21 still did not
comply by either producing the PMQ or paying the sanction. Creed-21 sought relief,
which was denied on February 1, 2016, and it was ordered to conduct the deposition by
February 8, 2016. February 8 came and went without Creed-21 producing the PMQ or
paying the sanctions. Creed-21 claimed that Briggs was unavailable due to a family
emergency.
The trial court reviewed the information provided regarding Briggs being
unavailable and felt the evidence was insufficient. It ordered that the deposition go
forward. Finally, Wal-Mart filed its motion for an issue sanction, which was granted by
the trial court based on the consistent refusal of Creed-21 to comply with court orders on
discovery.
19

 Such determination was not a manifest abuse of the trial court’s discretion. Creed21 initially refused to submit to the discovery based on a legal challenge. However, after
that challenge was rejected, it failed to comply with the trial court’s orders. The
declaration by Briggs and the statements by Kim did not establish that Briggs was
unavailable. The issuance of a monetary sanction and two court orders did nothing to
convince Creed-21 to produce the PMQ for deposition. The trial court was forced to
impose the issue sanction since less severe sanctions did not produce compliance with the
discovery rules. (Doppes, supra, 174 Cal.App.4th at p. 992.)
Creed-21 focuses on its actions taken once Briggs’s family emergency had
subsided. However, this ignores that Creed-21 was first given notice in September 2015
that the deposition was being requested. This also ignores that the trial court twice
ordered Creed-21 to produce the PMQ for a deposition. Moreover, there was no excuse
for why documents were not produced until Briggs returned to the office. The eleventh
hour attempt to avoid the dismissal of the action does not render the trial court’s decision
to dismiss the action an abuse of discretion.
Defendant claims that outright dismissal requires bad faith relying on Deyo v.
Kilbourne (1978) 84 Cal.App.3d 771. However, this case preceded the Civil Discovery
Act of 1986. Only cases decided after that time are relevant here. (See Liberty Mutual
Fire Ins. Co. v. LcL Administrators, Inc., supra, 163 Cal.App.4th at p. 1106.)
Based on the entire record of the discovery abuses by counsel for Creed-21, the
imposition of a terminating sanction did not constitute an arbitrary or capricious action.

20

 DISPOSITION
The judgment is affirmed. As the prevailing party, respondents are awarded their
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.

We concur:

CODRINGTON
J.

SLOUGH
J.

21