King v. Tarver CA3 ( 2023 )

Filed 5/31/23 King v. Tarver CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
TED ARTHUR KING, C096365
Plaintiff, Cross-defendant and (Super. Ct. No.
Appellant, S-CV-0042357)
v.
RUSSELL LEE TARVER,
Defendant, Cross-complainant and
Respondent.
The trial court ordered plaintiff and cross-defendant Ted King, in propria persona,
to produce documents and interrogatory responses, but he failed to do so. When King’s
case proceeded to a jury trial, the trial court gave him several more opportunities to
produce his discovery, but again, he did not. The trial court accordingly granted
defendant and cross-complainant Russell Lee Tarver’s motions for evidentiary sanctions,
precluding King from presenting witnesses and documents at trial. It then granted
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Tarver’s motion for nonsuit and dismissed King’s complaint. King appeals, arguing the
trial court erred by imposing evidentiary sanctions and granting the motion for nonsuit.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The record in this appeal is sparse. It includes neither the complaint nor the cross-
complaint. From what we can surmise, the case arises from a dispute between
acquaintances over payments related to one or more vehicles, and a leased storage space,
which culminated in an incident in which King hit Tarver with his car door.1 King filed a
complaint against Tarver. Tarver cross-complained against King, alleging causes of
action for breach of contract, negligence, eviction, conversion, assault, and battery.
On November 22, 2019, the trial court issued orders compelling King to serve
responses to form interrogatories and to produce documents requested by Tarver no later
than December 13, 2019.2 King failed to comply.
On March 28, 2022, the parties appeared for a jury trial on the complaint and
cross-complaint. The trial court ordered King to submit an exhibit list, jury instructions,
and verdict forms, as he had not yet done so. The following day, Tarver objected to
King’s proposed witness list and exhibit list because King still had not produced
interrogatory responses or documents as required by the November 22 discovery orders.
King represented that he had, in fact, previously produced the requested discovery but
that he did not have the responses or documents with him that day. The trial court
deferred the matter to the following day to allow King time to provide proof of his
discovery responses. It further stated that it would “consider terminating sanctions,
including exclusion of documents [and] witnesses if proof is not provided.” Tarver
1 King is admonished for citing police reports in his statement of the case and
statement of facts that are not included in the record.
2 The underlying orders are not in the record.
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moved to dismiss King’s case in the event all of his evidence was excluded, and the court
took the matter under submission. The jurors were then impaneled and sworn in. King
made his opening statement and conducted a direct examination of his first witness,
Tarver.
The court reconvened for trial the next day, March 30. At that time, King
indicated that he had jury instructions and verdict forms, which the trial court noted were
untimely pursuant to Code of Civil Procedure section 607a.3 The trial court then
revisited Tarver’s verbal motions for evidentiary sanctions. King stated that he still did
not have the required form interrogatories, nor the documents subject to production. The
trial court found that King had failed to comply with the discovery orders and therefore
granted Tarver’s requests to preclude King’s proposed witnesses from testifying and to
preclude King from presenting any documents in his case.
In light of the evidentiary sanctions imposed, and also based on King’s violation of
section 607a, Tarver moved to dismiss the complaint with prejudice. The trial court
construed Tarver’s request as a motion for judgment of nonsuit and granted the motion,
dismissing King’s case. Tarver proceeded to trial on the cross-complaint, where the jury
found King liable for negligence, assault, and battery, and awarded Tarver $50,000 in
damages. King appealed.
DISCUSSION
I
Notice of Appeal
We first address the issue of King’s notice of appeal. The notice initially stated
that he sought to challenge the trial court’s May 12, 2022 ruling denying Tarver’s motion
for attorney fees. However, King’s opening brief challenges the trial court’s March 30
3 Undesignated statutory references are to the Code of Civil Procedure.
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rulings imposing evidentiary sanctions and granting the motion for nonsuit. In his
responsive brief, Tarver argues that the discrepancy, along with other deficiencies in
King’s brief, are fatal to his appeal, but also substantively addresses King’s arguments
regarding evidentiary sanctions. King consequently filed a motion to amend his notice of
appeal, which we granted, thereby construing the notice to include an appeal “from the
order of dismissal entered on March 30, 2022.” We accordingly address King’s
challenge to the dismissal of his action.4
II
Evidentiary Sanctions
King’s arguments are difficult to parse. Nonetheless, he appears to challenge the
evidentiary sanctions on the ground that they were unjustly severe and untimely. We find
no error in the trial court’s issuance of sanctions.
Tarver’s motions for sanctions, though arguably presented as motions in limine,
operated as motions for evidentiary sanctions under section 2023.030, subdivision (c).5
This statute permits the trial court to prohibit any party engaging in the misuse of the
discovery process from introducing designated matters in evidence. (§ 2023.030, subd.
(c).) Misuses of the discovery process include failing to respond to authorized discovery
and disobeying a court order to produce discovery. (§ 2023.010, subds. (d), (g).)
Generally, nonmonetary sanctions may be imposed when a party willfully fails to comply
with a court order. (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.) “A court has broad
4 In doing so, we consider King’s challenge to the trial court’s issuance of
evidentiary sanctions, which precipitated the dismissal.
5 King appears to construe the evidentiary sanctions as terminating sanctions, but
this is not accurate. The trial court did not dismiss his action as a discovery sanction
under section 2023.030, subdivision (d); rather, it imposed evidentiary sanctions as
authorized by subdivision (c), and dismissed the action through separate motion for
nonsuit.
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discretion in selecting the appropriate penalty, and we must uphold the court’s
determination absent an abuse of discretion. [Citation.] We defer to the court’s
credibility decisions and draw all reasonable inferences in support of the court’s ruling.
[Citation].” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246
Cal.App.4th 566, 604.)
Here, King failed to respond to form interrogatories and failed to produce
documents as required by court order. The trial court gave King several opportunities at
the outset of trial to produce the requisite discovery, yet he did not do so, instead insisting
that he had already produced it. However, King was unable to provide any proof of
compliance. And, although King continues to claim on appeal that he responded to the
discovery requests, he does not cite to anything in the record to support this claim. Thus,
the court acted within its broad discretion by finding King willfully failed to comply with
discovery orders and issuing evidentiary sanctions as a result.
We further dispose of King’s argument that the trial court lacked jurisdiction to
issue sanctions because the motions were untimely. King relies on statutes and caselaw
regarding the timing for motions to compel, not motions for discovery sanctions. There
was nothing prohibiting Tarver from bringing his motions for discovery sanctions at the
time of trial. (§ 2023.030 [court may impose sanctions “after notice to any affected party,
person, or attorney, and after opportunity for hearing”]; see also London v. Dri-Honing
Corp. (2004) 117 Cal.App.4th 999, 1007.)
III
Nonsuit
King next argues that the trial court erred by granting the motion for nonsuit and
dismissing his action. First, King asserts that the evidence presented was sufficient to
prove his causes of action for wrongful eviction, conversion, and fraud, such that the trial
court’s dismissal was erroneous. Next, he contends the statute prohibits dismissal where
a cross-complaint is pending. Again, we are not persuaded.
5
Section 581c, subdivision (a) provides that after “the plaintiff has completed his or
her opening statement, or after the presentation of his or her evidence in a trial by jury,
the defendant . . . may move for a judgment of nonsuit.” (§ 581c, subd. (a).) “A motion
for nonsuit is the equivalent of a demurrer to the evidence.” (American Employer’s Ins.
Co. v. Smith (1980) 105 Cal.App.3d 94, 98.) In that sense it concedes the truth of the
facts asserted, if made after an opening statement, or the truth of the facts proven, if made
at the conclusion of plaintiff’s evidence. (Ibid.; Carachure v. Scott (2021) 70
Cal.App.5th 16, 25.) If examination of those facts shows that plaintiff cannot establish an
essential element of his or her cause of action as a matter of law, nonsuit is proper.
(American Employer’s Ins. Co., supra, at p. 98; Nally v. Grace Community Church
(1988) 47 Cal.3d 278, 291.) We review a judgment of nonsuit de novo, applying the
same standards as the trial court. (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC
(2010) 185 Cal.App.4th 1050, 1060.)
Here, it appears that nonsuit was granted under the second scenario articulated in
the statute, i.e., after the presentation of King’s evidence. Specifically, the record shows
that King made his opening statement and conducted a direct examination of Tarver. The
following morning, the trial court issued evidentiary sanctions, prohibiting plaintiff from
presenting any further evidence, thereby rendering plaintiff’s presentation of evidence
complete. However, King has failed to provide a record sufficient to show the grant of
nonsuit under these circumstances was in error.
“It is the burden of appellant to provide an accurate record on appeal to
demonstrate error. Failure to do so precludes an adequate review and results in
affirmance of the trial court’s determination. [Citation.]” (Estrada v. Ramirez (1999) 71
Cal.App.4th 618, 620, fn. 1.) Although he asks this court to find that his complaint has
merit, King does not provide a copy of the pleading, nor his opening statement, and the
record does not otherwise disclose King’s claims as pled. Thus, we cannot determine
whether any of his causes of action could succeed as a matter of law. (Paul v. Layne &
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Bowler Corp. (1937) 9 Cal.2d 561, 564 [review of motion for nonsuit requires review of
complaint].)
And even if we did have the operative complaint, King’s argument relies on
Tarver’s testimony from direct examination, which King draws exclusively from his own
proposed settled statement. But King’s proposed settled statement contains only King’s
recollection of Tarver’s testimony, and was not adopted by the trial court.6 Moreover,
King’s brief fails to adequately explain how King’s summary of Tarver’s testimony, even
if accepted, supports his purported causes of action. In fact, the bulk of King’s argument
seems to address a cause of action for fraud that he indicates was not even pled in his
operative complaint. Accordingly, King has failed to show the trial court’s grant of
nonsuit was in error.
As an alternative argument, King cites to section 581, subdivision (i), which
provides that the trial court may not enter dismissal where affirmative relief is sought by
a cross-complaint. (§ 581, subd. (i).) However, that statute only prevents dismissal
where a plaintiff moves for dismissal before the start of trial. (§ 581, subds. (b)(1), (i).)
Here, the trial court granted the nonsuit and dismissed the action following plaintiff’s
opening argument and presentation of evidence, in accordance with the requirements of
section 581c, subdivision (a). Thus, the statute relied upon by King has no relevance
here.
Based on the foregoing, we affirm.7
6 The modified settled statement ultimately issued by the trial court solely addresses
Tarver’s motion for attorney fees, which was King’s original asserted basis for appeal.
7 King’s remaining arguments, to the extent they are discernible, are unsupported by
the law and the record. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [rejecting
arguments on appeal as “perfunctorily assert[ed]” and made “without development and,
indeed, without a clear indication that they are intended to be discrete contentions”].) Of
particular note, King fails to provide any authority for his contention that the trial court
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DISPOSITION
The judgment is affirmed. Tarver shall recover his costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1), (2).)
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
EARL , J.
should have permitted him to plead a cause of action for fraud and submit jury
instructions on his claim. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th
1480, 1488, fn. 3 [“ ‘When an issue is unsupported by pertinent or cognizable legal
argument it may be deemed abandoned and discussion by the reviewing court is
unnecessary’ ”].)
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