1

Filed 8/11/14 Bartholomew v. Triay CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION ONE

MARILYN BARTHOLOMEW,

Plaintiff and Appellant,

v.

CHARLES A. TRIAY et al.,

Defendant and Respondents.

 A139998

 (Alameda County

 Super. Ct. No. RG12615113)

 ORDER MODIFYING OPINION

 AND DENYING REHEARING 

 [NO CHANGE IN JUDGMENT]

BY THE COURT:

It is ordered that the nonpublished opinion filed herein on July 17, 2014, be 

modified as follows:

Delete the words “except trial” from the second sentence at the top of page two. 

The sentence now reads: “The two cases were consolidated for all purposes on August 

10, 2012.”

This modification does not change the judgment.

The petition for rehearing is denied.

___________________________ ___________________________

Date Acting P.J.
1

Filed 7/17/14 Bartholomew v. Triay CA1/1 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIRST APPELLATE DISTRICT

DIVISION ONE

MARILYN BARTHOLOMEW, 

Plaintiff and Appellant,

v.

CHARLES A. TRIAY et al.,

Defendants and Respondents.

 A139998

 (Alameda County

 Super. Ct. No. RG12615113)

INTRODUCTION

This legal malpractice case arose after Bartholomew (plaintiff) retained Triay and 

his law firm (defendants) in a probate matter. Triay was the fourth law firm retained by 

plaintiff to represent her in this matter. Eventually, defendants made a motion to 

withdraw as counsel, which was granted. Plaintiff was not happy with the results of 

Triay’s work on her behalf and sued Triay and his firm for the work, in propria persona. 

The discovery process proved to be contentious, plaintiff failed to appear at a scheduled 

deposition, and defendants moved to compel her deposition, which motion the court 

granted. When the court’s order did not prompt plaintiff to make herself available for 

deposition, defendants moved for terminating sanctions, which the court granted. This 

appeal follows. We find no abuse of discretion or denial of due process and affirm.

STATEMENT OF FACTS

Plaintiff filed her complaint against defendants on January 31, 2012. The case 

was assigned to Judge Freedman for all purposes. Trial was scheduled for July 15, 2013.
2

Defendants countersued for attorney’s fees. The two cases were consolidated for all 

purposes except trial on August 10, 2012. 

On September 17, 2012, defendants noticed plaintiff’s deposition for October 3, 

2012. Plaintiff asked defendants to continue the deposition because of her pending 

discovery motion.1 Defendants did so, but plaintiff would not agree to a specific date 

after the October 19, 2012 hearing date. From October 19 to December 2, defense 

counsel made several attempts to reschedule plaintiff’s deposition. Plaintiff avoided any 

proposed dates, claiming she had matters during the holiday season that consumed her 

availability, and that her newly hired attorney was not available to discuss deposition 

dates with defense counsel because of the limited scope of his representation. 

Finally, on December 3, 2012, plaintiff indicated she could be available for 

deposition on January 15, 16 or 17, 2013. On December 4, 2012, defendants indicated 

they would depose her on January 16, 2013 and re-noticed her deposition for that date. 

Plaintiff did not file any objection to the date selected pursuant to Code of Civil 

Procedure section 2025.410.2 However, she failed to appear for her scheduled deposition 

on January 16, 2013. 

The two sides began a meet-and-confer process to reach a new date. Defense 

counsel proposed four alternative deposition dates: January 23, 24, 28, and 30. On 

January 16 and 23, 2013, defendant sent plaintiff a meet-and-confer letter indicating he 

would file a motion to compel her deposition unless they could mutually agree on a date. 

On February 4, 2013, defendants filed a motion to compel plaintiff’s deposition to 

be heard March 1, 2013. On February 11, 2013, plaintiff filed a motion to compel further 

responses and document production.3 On February 15, plaintiff filed an ex parte 

 

1 Between June 20, 2012 and March 20, 2013, the parties litigated numerous motions to 

compel discovery and impose sanctions. 

2

Further unspecified statutory references are to the Code of Civil Procedure.

3 By tentative ruling on March 20 and 21, 2013, the court denied plaintiff’s February 11 

motion to compel further discovery responses, granted the motion to compel a further 

response to RPD No. 50, and denied plaintiff’s request for monetary sanctions. Plaintiff 
3

application for a continuance of the March 1 hearing date on defendants’ motion, which 

defendants opposed. She also filed an opposition to defendants’ motion to compel 

plaintiff’s deposition. The ex parte application was denied the same day. On February 

25, 2013, plaintiff filed a motion to compel further responses to interrogatories and for 

monetary sanctions. 4

On February 28, 2013, the court issued a tentative ruling granting defendants’

motion to compel plaintiff’s deposition. Plaintiff challenged the tentative ruling , and a

hearing was held on March 1, 2013, at which time the court adopted its tentative ruling. 

The order stated, in relevant part: “Plaintiff shall appear for her deposition at the offices 

of Defendants’ counsel . . . on a date and time to be mutually agreed by the parties but by 

no later than March 22, 2013 unless the parties otherwise agree.” However, through 

inadvertence and clerical error, the order was not memorialized as a minute order until 

March 19, 2013, at which time the order was entered in the minutes and posted on the 

court’s public “DomainWeb” site. Between February 28 and March 19, 2013, plaintiff 

“was checking the Register of Actions of this case on DomainWeb every day, sometimes 

more than once a day, to see whether the order had yet been issued.” The written order 

was mailed to the parties March 23, 2013. 

At the March 1 hearing, defendants, assuming they had been successful in getting 

an order to compel plaintiff’s deposition, asked plaintiff to suggest dates for her 

deposition. Plaintiff advised she was unable to provide any available deposition dates at 

that time. Later that day, defense counsel sent plaintiff a letter asking for several dates 

she would be available for deposition between March 1 and March 22. On March 8, 

defendants sent a second letter to plaintiff attempting to schedule her deposition. A third 

letter was sent on March 12, indicating defendants did not want to have to revisit this 

 

filed her first motion to disqualify Judge Freedman on March 21. Hearing on the 

motion set for March 22 was continued in light of the disqualification motion. 

4

This motion, originally scheduled for hearing on March 22, was also continued in light 

of the disqualification motion. 
4

issue at the further case management conference on March 22, and counsel needed more 

than “just a few day’s notice” to rearrange his schedule to accommodate plaintiff’s 

availability.

5

 

On March 21, plaintiff filed the first of six challenges for cause against Judge 

Freedman. She filed the second on April 16, 2013, the third on May 1, 2013, and the 

fourth on June 5, 2013. Two out-of-county judges were assigned to review for bias the 

declarations of Judge Freedman and plaintiff in the first three challenges for cause. Both 

judges ruled against plaintiff. 

Defendants received no response from plaintiff to the three letters requesting dates 

for a deposition. On March 26, 2013, defendants filed a motion for sanctions, including 

terminating sanctions. On April 1, 2013, plaintiff sent defendants a letter via email and 

first class mail informing them she had not responded to their letters requesting 

deposition dates because the court’s order was not entered in the minutes until March 19, 

which she knew because she had been checking the Register of Actions on DomainWeb 

daily. On April 8, plaintiff filed her opposition to defendants’ motion for terminating 

sanctions. As of April 12, 2013, the date defense counsel filed a supplemental 

declaration in support of the motion, plaintiff had still not replied to the March letters 

seeking a new date, or offered to meet and confer on deposition scheduling. 

The hearing on defendants’ motion for terminating sanctions was originally 

scheduled for April 19, 2013. However, Judge Freedman had to continue that motion and 

plaintiff’s pending discovery motions several times because of plaintiff’s serial 

challenges for cause against him. The hearing on defendants’ motion for terminating and

other sanctions was ordered continued to May 3. On May 3, the hearing on defendants’

motion, plaintiff’s discovery motions filed February 11 and 25, and the case management 

conference scheduled for May 3 were continued to June 7. Finally, on June 7, the case 

 

5 By separate letter dated March 8, 2013, defendants made a statutory offer to 

compromise pursuant to section 998. 
5

management conference, plaintiff’s discovery motions, and defendants’ motion for 

terminating sanctions were all continued until June 14 due to plaintiff’s June 4 challenge 

for cause, which had not yet been ruled on. 

On June 5, 2013, this court summarily denied plaintiff’s petition for writ of 

mandate or prohibition from the denial of her first three challenges for cause. 

On June 13, 2013, Judge Freedman issued three orders notifying the parties their 

appearances were required at the hearing the next day, June 14.

6

 The parties were 

anticipating some action on the hearing because it had been continued several times due 

to plaintiff’s challenges that were filed just before each scheduled hearing date (i.e. April 

16 challenge, April 19 hearing; May 1 challenge, May 3 hearing; June 5 challenge, June 7 

hearing). The court’s written order striking the fourth challenge (June 5) was filed June 

13. 

The court’s order requiring the parties to appear at the hearing the next day was 

also communicated by email to each side. Plaintiff confirmed receipt of the email by 

replying to it at 11:12 a.m., stating: “Please see attached email from me dated May 2, 

2013 which was my response to Dept. 20 regarding a similar tentative ruling that had 

appeared when there had not been a ruling on a previous pending challenge for cause that 

I had filed. Everything I stated in that May 2nd email also applies to the current situation 

of the challenge dated June 4, 2013 to which each order dated June 7, 2013, regarding 

motion hearing dates, refers in its statement: ‘The court construes this as an additional 

challenge for cause. The challenge has not yet been ruled on.’ ” (Italics in original.) 

In an email to the Department 20 court clerk, copied to plaintiff, sent at 11:38 

a.m., defense counsel replied: “I represent Defendants in the above referenced matter, 

 

6

The orders were issued on DomainWeb as tentative rulings, although there was no 

actual ruling on the merits. As to each motion, the order stated: “Parties To Appear [¶] 

This Tentative Ruling is issued by Judge Robert B. Freedman On the Motion ... filed by 

[party’s name] on [date]. PARTIES ARE TO APPEAR (in person or by CourtCall) at the 

hearing at 2:00p.m. on June 14, 2013, in Dept. 20, Administration Building, 4th Floor, 

1221 Oak Street, Oakland.” 
6

and am providing the response below to Plaintiff’s email correspondence from a few 

minutes ago. [¶] Given the upcoming trial management conference and trial dates on 

7/11/13 and 7/15/13 respectively, the Defense believes it would be beneficial to proceed 

with the rescheduled hearing on 6/14/13 to address (at a minimum) case management 

issues and hopefully also the multiple pending discovery motions.” At 12:54 p.m., 

plaintiff replied to the court clerk and defense counsel: “I disagree with Mr. Johnson’s 

opinion. My understanding of the status of this case is that, while the question of 

disqualification is pending, any hearing or proceeding between the parties and the court 

has been stayed, and therefore remains postponed, for the entire period of that status.” 

The court clerk made it clear the judge expected each side to appear. At 3:20 p.m.

the clerk emailed the parties: “Good afternoon, [¶] Please be advised that the court’s 

rulings directing the parties to appear on June 14, 2013 remain in effect. Telephonic 

appearances are authorized if requested.” At 3:54 p.m. plaintiff replied: “Sianté: By law, 

my appearance is not required and is not possible under the circumstances. I have not yet 

heard from Dan on this.” And finally, at 5:34 p.m. plaintiff emailed the court and 

counsel: “There has not yet been a response from Dan or any other research attorney for 

Dept. 20, regarding my those [sic] tentative rulings; so, this is my last email on the 

subject. Please be advised that there will not be an appearance by me on June 14, 2013.” 

(Emphasis in original.)

On June 14, 2013, plaintiff failed to appear at the hearing. No excuse was 

provided the court. The court proceeded to grant the motion to terminate the case 

because of plaintiff’s refusal to submit to a deposition, even after an order compelling it, 

and dismissed her complaint.

7

 The court’s reasons for its decision are set forth in detail 

in its written order.8 The court vacated the July 15, 2013 trial date and subsequently 

 

7

In light of its order dismissing plaintiff’s complaint, the court dropped as moot 

plaintiff’s pending discovery motions. 

8

The judgment of dismissal was filed August 13, 2013. 
7

scheduled a further case management conference on defendants’ previously consolidated 

complaint for attorney’s fees against plaintiff. 9

On June 20, 2013, plaintiff filed her fifth challenge for cause to disqualify Judge 

Freedman. The court’s order striking the challenge was filed June 25, 2013. 

On June 26, 2013 plaintiff filed a declaration regarding the “tentative rulings of 

June 13, 2013 and email communications between the parties and Department 20 on said 

date.” In it, she averred she did not “refuse” to appear at the hearing on June 14, 2013. 

Instead, the court did not inform her, and she was not informed, there would be hearings 

on that date. The court failed to serve notice by mail that there would be hearings on that 

date until after the fact; she was never informed of the court’s June 13 order striking her 

challenge for cause; and “the content of [her] email messages . . . reflects that during 

business hours on June 13, 2013 [she] was informing the court that [she] interpreted the 

tentative rulings to mean that only procedural matters – such as proposed schedules for 

continued motion hearing dates, rescheduling other dates, and rescheduling the trial date 

– would be addressed by the Court on June 14, 2013.” On July 5, 2013, plaintiff filed a 

second declaration regarding the court’s tentative rulings of March 20, March 21, May 1, 

and May 2, 2013 and the May 2, 2013 emails between Department 20 and the parties. 

Finally, plaintiff filed a motion to vacate and set aside the dismissal on August 13, 

2013.10 The motion to vacate the dismissal was heard and denied by detailed written 

order September 12, 2013.11 This appeal follows.12

 

9

The two cases were unconsolidated on August 12, 2013. 

10 An amended motion and declaration were filed August 15, 2013. 

11 Plaintiff subsequently filed a sixth challenge for cause on October 10 and an amended 

declaration in support of it on October 15, which were stricken by the court by written 

order. 

12 Plaintiff also appeals the amended judgment containing a cost award, although she 

makes no argument about the cost award. 
8

DISCUSSION

Plaintiff challenges the court’s dismissal of her action as void, arguing the court’s 

denial of her motion to vacate and set aside the dismissal was an abuse of discretion and 

an act in excess of its jurisdiction. She also argues the court abused its discretion in 

granting the motion for terminating sanctions, dismissing her action, and dropping her 

discovery motions. Finally, plaintiff argues she was denied due process because the 

judge was biased and the proceedings were devoid of due process. We disagree.

I. Standard of Review

Our analysis of plaintiff’s contentions begins with the applicable standard of 

review. On appeal, we review the trial court’s choice of sanctions with respect to 

discovery matters for abuse of discretion. (Sauer v. Superior Court (1987) 195 

Cal.App.3d 213, 228.) While the trial court’s discretion to impose discovery sanctions is 

broad, and will not be disturbed on appeal absent a showing of abuse (Reedy v. Bussell

(2007) 148 Cal.App.4th 1272, 1293; Sauer v. Superior Court, supra, at p. 228), it is 

circumscribed by certain substantive and procedural limits. Substantively, there must be a 

willful failure to comply with a court order for discovery. (Biles v. Exxon Mobil Corp.

(2004) 124 Cal.App.4th 1315, 1327.) Procedurally, a noticed motion is required, and 

sanctions may not be granted ex parte. (Sole Energy Co. v. Hodges (2005) 128 

Cal.App.4th 199, 202.) 

An order denying a motion for relief from dismissal pursuant to section 473, 

subdivisions (b) and (d), on account of a party’s mistake, inadvertence, surprise, or 

excusable neglect is likewise reviewed for abuse of discretion. (Shamblin v. Brattain

(1988) 44 Cal.3d 474, 478.) We decline plaintiff’s invitation to review de novo the 

court’s fact-driven disposition of her motion. 

II. The Court Did Not Act in Excess of Its Jurisdiction

We first address plaintiff’s contention the court acted in excess of its jurisdiction 

by ordering the parties to appear for hearing on June 14, 2013, in light of plaintiff’s June 
9

5 challenge for cause. The objection to the court’s jurisdiction is not well taken. As of 

June 13, 2013 – the day the trial court issued a tentative ruling ordering the parties to 

appear the next day – plaintiffs first three challenges for cause had been denied by 

independent judges, the court of appeal had summarily denied her petition for writ of 

mandate, and the trial court had stricken plaintiff’s fourth challenge, filed June 5. It is 

true orders made by a disqualified judge are void. (Rossco Holdings, Inc. v. Bank of 

America (2007) 149 Cal.App.4th 1353, 1362.) “ ‘[D]isqualification occurs when the 

facts creating disqualification arise, not when the disqualification is established.’ 

[Citation.]” (Id. at p. 1363.) “ ‘[A] disqualified judge has no power to act in any 

proceedings after his or her disqualification.’ [Citation.]” (Id. at p. 1364.) However, as of 

June 13, 2013, there were no facts giving rise to disqualification, and Judge Freedman 

was not a disqualified judge. Judge Freedman acted well within his power when he 

ordered the parties to appear at a hearing on the merits of a motion that had been pending 

for months and duly continued to June 14 on June 7. Furthermore, as the court noted in 

its order, “even before the court entered its order on June 13, 2013 striking the fourth 

challenge, it had authority to ‘[s]et proceedings for trial or hearing,’ which includes 

publishing a tentative ruling requiring the parties to appear at the hearing on June 14, 

2013. (See C.C.P. § 170.4 (a)(5).”13 

Plaintiff’s further argument that California Rules of Court, rule 3.1308 (a)(1)14 and 

 

13 Section 170.4 provides in relevant part: “(a) A disqualified judge, notwithstanding his 

or her disqualification may do any of the following: [¶] . . . [¶] (5) Set proceedings for 

trial or hearing. [¶] (6) . . . [¶] (b) Notwithstanding paragraph (5) of subdivision (c) of 

Section 170.3, if a statement of disqualification is untimely filed or if on its face it 

discloses no legal grounds for disqualification, the trial judge against whom it was filed 

may order it stricken.”

14 California Rule of Court 3.1308, subdivision (a)(1) provides: “(a) Tentative ruling 

procedures [¶]A trial court that offers a tentative ruling procedure in civil law and 

motion matters must follow one of the following procedures: [¶](1) Notice of intent to 

appear required [¶]The court must make its tentative ruling available by telephone and 

also, at the option of the court, by any other method designated by the court, by no later 

than 3:00 p.m. the court day before the scheduled hearing. If the court desires oral 

argument, the tentative ruling must so direct. The tentative ruling may also note any 

issues on which the court wishes the parties to provide further argument. If the court has 
10

Superior Court of Alameda County Local Rules, rule 3.30(c)15 require that parties be 

allowed to contest a notice to appear at a scheduled hearing is likewise not well taken. 

California Rules of Court, rule 3.1308(a)(1) clearly contemplates a ruling on the merits of 

a contested issue already set for hearing. It permits a party to challenge a tentative ruling 

on the merits by notifying other parties of his or her intent to contest the ruling in person

at the scheduled hearing. Local rule 3.30, subdivision (c) is even clearer: It applies to 

tentative rulings and notices to appear, and specifies that “[w]henever a tentative ruling 

has not been issued, the parties are to appear at the hearing unless otherwise ordered.” 

(Super. Ct. Alameda County, Local Rules, rule 3.30(c).) The rules do not contemplate 

that a party will use the tentative ruling procedure to contest the necessity of his or her 

appearance at the scheduled hearing. Here, the discovery motions were already 

scheduled for hearing on June 14, 2013. The court made no tentative ruling on the 

merits. Under the local rule, the court need not have ordered the parties to appear, since 

their appearance at the hearing was assumed in the absence of a tentative ruling on the 

merits. Instead, to be absolutely clear, the court used the tentative ruling procedure as a 

means of expeditiously notifying the parties that their appearances at a hearing the next 

 

not directed argument, oral argument must be permitted only if a party notifies all other 

parties and the court by 4:00 p.m. on the court day before the hearing of the party’s 

intention to appear. A party must notify all other parties by telephone or in person. The 

court must accept notice by telephone and, at its discretion, may also designate 

alternative methods by which a party may notify the court of the party’s intention to 

appear. The tentative ruling will become the ruling of the court if the court has not 

directed oral argument by its tentative ruling and notice of intent to appear has not been 

given.”

15 Alameda County Superior Court Local Rules, rule 3.30, subdivision (c) provides: “The 

court adopts the tentative ruling procedure set out in California Rules of Court, rule 

3.1308(a)(1). The tentative ruling or notice to appear will generally be available by 4:00 

p.m. two court days prior to the scheduled hearing and no later than 3:00 p.m. the court 

day before the hearing. Unless the court directs otherwise, the court’s tentative ruling 

will be available on the court’s website at www.alameda.courts.ca.gov/tentativerulings or 

by calling (866) 223-2244. Whenever a tentative ruling has not been issued, the parties 

are to appear at the hearing unless otherwise ordered.” (Super. Ct. Alameda County, 

Local Rules, rule 3.30, as amended Jan. 1, 2010, italics added.)
11

day were required. The court’s use of the tentative ruling procedure to ensure the parties 

understood they were to appear the following day at the hearings did not rob the court of 

the authority to require the parties’ attendance at a scheduled hearing on pending 

motions, especially when in this case the DomainWeb notification was confirmed by 

emails from the court clerk that the parties were expected to appear.

III. The Court Did Not Abuse Its Discretion in Its Choice of Discovery Sanctions

Next we consider whether the court abused its discretion in imposing the ultimate 

sanction, dismissal of plaintiff’s action, either because she repeatedly refused to make 

herself available for deposition, or because she failed to comply with the court’s order 

compelling her deposition. “A trial court may impose sanctions, including terminating

sanctions, for a party’s misuse of the discovery process, which includes disobedience of a 

court order.” (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at p. 207; see 

§§ 2023.010 [misuses of discovery], 2023.030 [sanctions].)

A. Substantive Prerequisites

Generally speaking, nonmonetary sanctions for discovery abuse will not be 

imposed in the absence of willful failure to comply with a prior court order. Two facts 

are generally prerequisite to the imposition of nonmonetary sanctions: (1) absent unusual 

circumstances, there must be a failure to comply with a court order, and (2) the failure 

must be willful. (See, e.g., R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 

Cal.App.4th 486, 496 [terminating sanctions properly imposed for repeated efforts to 

thwart discovery, including violation of two discovery orders].) “Even where 

nonmonetary sanctions are called for, they . . . ‘ “ ‘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.’ [Citations.] . . . [¶] ‘ “The sanctions the court may 

impose are such as are suitable and necessary to enable the party seeking discovery to 

obtain the objects of the discovery he seeks, but the court may not impose sanctions 
12

which are designed not to accomplish the objects of discovery but to impose punishment.

[Citations.]” ’ ” ’ ” (Biles v. Exxon Mobil Corp., supra, 124 Cal.App.4th at p. 1327.) 

There must be a judicial finding of willful non-compliance. (See, e.g., Weinkauf v. 

Superior Court (1966) 64 Cal.2d 662, 664; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 

787-788.) “To justify imposition of such discovery sanctions, the trial court must 

expressly find that the disobedient party’s failure to obey was wilful.” (Motown Record 

Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489.) The propriety of terminating

sanctions is determined by the totality of the circumstances, including the willfulness of 

the improper acts, 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, 1244-1246.)

B. Procedural Requirements

The trial court’s power to impose discovery sanctions is also limited by statutory 

and constitutional procedural requirements. (See Sole Energy Co. v. Hodges, supra, 128 

Cal.App.4th at pp. 207-208.) By statute, “the court, after notice to any affected party, 

person, or attorney, and after opportunity for hearing, may impose” specified sanctions. 

(§ 2023.030.) “Adequate notice prior to imposition of sanctions is mandated not only by 

statute, but also by the due process clauses of both the state and federal Constitutions.” 

(O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 961 [sanctions under § 128.5]; Sole Energy 

Co. v. Hodges, at p. 208 [discovery sanctions].) To satisfy these procedural safeguards, a 

noticed motion is a necessary predicate to the imposition of discovery sanctions. (Sole 

Energy Co. v. Hodges, at pp. 207-208; see § 2023.040; Alliance Bank v. Murray (1984) 

161 Cal.App.3d 1, 5 [citing predecessor provision, former § 2034, subd. (d)].) Ex parte 

imposition of discovery sanctions offends due process as well as statutory protections. 

(Sole Energy Co. v. Hodges, at p. 208.)
13

A party must also have notice of the court’s order. Usually, the prevailing party 

prepares and serves upon the opposing party a conforming order. 16 But if the prevailing 

party fails to do so, the notice requirement is satisfied by a court-issued minute order in 

lieu of an attorney-prepared order. “An order is a ‘direction of a court or judge, made or 

entered in writing,’ other than a judgment. ([§] 1003; see Passavanti v. Williams (1990) 

225 C.A.3d 1602, 1605, [‘another way of defining an order is the court’s written ruling 

on a motion’; orders distinguished from judgments]; C.J.E.R., Judges Benchbook, Civil 

Proceedings: Before Trial 2d, § 6.53 et seq.)” (6 Witkin, Cal. Proc. (5th ed. 2008) 

Proceedings Without Trial, § 44, p. 466.) “Even if the court does not direct preparation of 

an order, one must be prepared whenever a party prevails on a motion.... (C.R.C., rule 

3.1312(a).) . . . [¶] A trial court’s oral ruling on a motion does not become effective until 

it is filed in writing with the clerk or entered in the minutes. Accordingly, the trial court 

may properly file a written order differing from its oral ruling when the ruling has not 

been entered in the minutes. Furthermore, when the trial court’s minute order expressly 

indicates that a written order will be filed, only the written order is the effective order. 

. . . [¶] . . . One of these methods must be used if the order is to be effective.” (7 Witkin, 

Cal. Proc. (5th ed. 2008) Judgment, § 54, pp. 589-590.)

C. Analysis

Plaintiff argues no evidence supports opposing counsel’s allegations or the court’s 

findings that she refused to comply with the order compelling her deposition, or refused 

to attend a deposition, because (1) defendants never noticed a deposition for her to attend 

between March 1, 2013 and June 14, 2013; (2) it was not plaintiff’s fault defendant failed 

 

16 “If the prevailing party does not get around to preparing the order, then any other party 

may do it. (California Rules of Court, Rule [3.1312(d) ].) The main ‘sanction,’ of course, 

is that the victory won in the presentation of the motion does not ‘go into effect’ until the 

order is signed, so prevailing parties are pretty good about getting this job done.” 

(Younger on California Motions (2004 ed.) Ch. 2, Document Preparation and Service, 

§ 2:38, p. 32.)
14

to notice a deposition or propose dates for deposition; and (3) the order did not require 

plaintiff to propose dates. 

Plaintiff’s arguments do not demonstrate an abuse of discretion based on the 

totality of the circumstances. (Lang v. Hochman, supra, 77 Cal.App.4th at pp. 1244-

1246.) In this case, those circumstances included the events which led up to the court’s 

March 1, 2013 order compelling plaintiff to make herself available for deposition in the 

first place, such as failing to appear at a noticed deposition on January 16, 2013 without 

good cause and without having served a valid objection, and refusing thereafter to meet 

and confer about any other date for her deposition. 

It also included plaintiff’s conduct after the court’s order compelling her 

deposition. It is true the court’s order did not become effective until March 19, 2013. 

Plaintiff cannot be sanctioned for failing to comply with the court’s March 1, 2013 order 

while it was subject to modification. However, plaintiff had actual notice that the court’s 

order of March 1 had been memorialized in a minute order on March 19. The order 

merely required plaintiff to appear for deposition and produce documents “on a date and 

time to be mutually agreed by the parties but by no later than March 22, 2013 unless the 

parties otherwise agree.” (Italics added.) Substantial evidence supports the court’s

finding that plaintiff’s conduct was willful. No abuse of discretion appears. 

Plaintiff also argues the choice of a terminating sanction was excessive and 

unnecessary, because the defense said it was willing to go trial even if the court imposed 

no sanctions, the court still needed to resolve plaintiff’s pending discovery motions, and a 

simple continuance of the July 15, 2013 trial date would have given both sides time to 

complete discovery and provided the court with an opportunity to give plaintiff “a 

warning of the possibility of enhanced sanctions.” However, as the court noted in its 

June 14, 2013 order, plaintiff did not provide the court “with any reason to believe that a 

lesser order could or would be able to address the prejudice caused by her chosen strategy 

at this late date,” nor had the court’s prior order imposing monetary sanctions of $1,230 
15

“have the effect of compelling Plaintiff’s compliance with her discovery obligations. . . . 

[T]he fact that Plaintiff did not comply with her obligation to appear for her deposition 

despite such prior sanctions is a factor reflecting that further sanctions of a lesser nature 

would not be effective.” The court did not abuse its discretion by not warning plaintiff or 

continuing the trial date. 

IV. The Trial Court Did Not Abuse Its Discretion In Denying Plaintiff’s Motion to 

 Vacate and Set Aside The Dismissal Under Section 437, Subdivisions (b) and (d).

Subdivision (b) of section 473 permits a court “upon any terms as may be just” to 

relieve a party from a dismissal “taken against him or her through his or her mistake, 

inadvertence, surprise, or excusable neglect.” Subdivision (d) of that section permits the 

court to “correct clerical mistakes in its judgment or orders as entered, so as to conform 

to the judgment or order directed, and may, on motion of either party after notice to the 

other party, set aside any void judgment or order.” (§ 473, subd. (d).) As discussed above 

in section II of this opinion, the court’s order was not void; nor was it a clerical error. 

Thus, subdivision (d) is not implicated here. 

The gravamen of plaintiff’s complaint under subdivision (b) is that the court made 

an “extrinsic mistake” in “failing to give [her] adequate notice that Triay’s motion for 

terminating sanctions would be heard with oral argument on June 14, 2013.” 

Furthermore, “court staff failed to inform her” that she was incorrect “in her belief that 

only discussion regarding scheduling or proposed scheduled dates, for the pending 

matters, would occur on June 14, 2013.” Thus, it was the court’s fault that “caused [her]

to be deprived of opportunity to make oral argument” on June 14, 2013. We disagree.

As discussed above in section II of this opinion, local rules required plaintiff’s 

attendance at the scheduled hearing because the court had not issued a tentative ruling on 

the merits. In addition to the local rule, the record shows the court explicitly used the 

tentative ruling mechanism to advise the parties their attendance at the hearing was 

required, and then reinforced that message by having the court clerk deliver it again by 
16

email after plaintiff indicated she did not believe her attendance was required. The court 

delivered adequate notice. More was not required. Plaintiff has not demonstrated the 

court abused its discretion in finding no excusable mistake on plaintiff’s part.

V. The Trial Court Did Not Deprive Plaintiff of Due Process or a Fair Hearing.

Finally, plaintiff contends she was deprived of due process and a fair hearing 

because Judge Freedman was not impartial, plaintiff was not adequately notified of the 

proceedings, nor was she given the opportunity to be heard or to cross-examine her

accusers at the proceedings. (See Goldberg v. Kelly (1970) 397 U.S. 254, 267-268.) We 

disagree. For the reasons discussed above, we find plaintiff was given adequate notice 

that her appearance was required at the June 14, 2013 hearing on defendant’s pending 

motion for terminating or other sanctions, which hearing had been duly scheduled and 

previously noticed. She chose not to appear, thereby forfeiting her opportunity to be 

heard or to question her accusers. Finally, the record is devoid of evidence that Judge 

Freedman believed she perjured herself or that he was otherwise not impartial. The fact 

he did not find her excuses and arguments sufficient to warrant relief under section 473, 

subdivision (b) is not evidence of lack of impartiality. Plaintiff was not deprived of due 

process or a fair hearing. 
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DISPOSITION

The judgment is affirmed. Defendants shall have costs on appeal.

_________________________

Dondero, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Banke, J.