Filed 6/28/24 Albinali v. Calvert CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

RIMA ALBINALI

,

Plaintiff and Appellant,

v.

JAY W. CALVERT

,

Defendant and Respondent. B 331322

(Los Angeles County

Super. Ct. No. 21 SMCV00399 )

APPEAL from a judgment of the Superior Court of Los Angeles County,

Elaine W. Mandel , Judge. Reversed in part and Affirmed in part

.

Next Level Legal and Amy K. Saechao for Plaintiff and Appellant.

Baker & McKenzie, Benjamin W. Turner and Edward D. Totin o for

Defendant and Respondent.2 INTRODUCTION

This case concerns the use of terminating sanctions as a consequence of

a plaintiff’s repeated discovery abuses and obstructionist litigation tactics. A

plaintiff’s remote deposition was interrupted by technical difficulties

, and the

parties agreed to reconvene on another date to complete the deposition.

Defendants’ e fforts to schedule plaintiff’s continued deposition were

unsuccessful, despite court orders directing plaintiff to appear f or deposition

and imposing monetary sanctions against her. At the same time, plaintiff

engaged in a pattern of delay and obstruction, including failing to appear at

conferences, failing to participate in court

- ordered joint filings, and

requesting continu ances to accommodate a revolving door of counsel who

would briefly substitute into the case, only to withdraw shortly thereafter. I n

response, defendants brought a motion for terminating sanctions against

plaintiff . The threat of terminating sanctions wa s enough to compel

plaintiff’s appearance for deposition ; however, the court ultimately granted

defendants’ request for terminating sanctions and entered judgment

dismissing plaintiff’s action

.

On appeal, plaintiff challenges the trial court’s grant of terminating

sanctions and the imposition of monetary sanctions against her. We reverse

one of two awards of monetary sanctions and otherwise affirm the judgment

of dismissal

.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background Facts

The instant action is not the first lawsuit between these parties.

Background facts regarding the parties’ history are taken from a prior

appeal, Calvert v. Al Binali (2018) 29 Cal.App.5th 954

. Defendant and3

respondent Dr. Jay W. Calvert (Calvert) is a plastic surgeon based i n

Southern California and plaintiff and appellant Rima Albinali (Albinali) 1 is

his former patient. ( Id

. at p. 957.) On January 27, 2011, Calvert, together

with Jay Calvert, MD, his professional corporation, 2 filed an action for

defamation against Albinali, alleging she was responsible for a negative

review that was posted online by one of his former patients. ( Ibid .)

When attempts to serve Albinali were unsuccessful, Calvert resorted to

service by publication. ( Calvert v. Al Binali

, supra

, 29 Cal.App.5th at p. 959.)

When Albinali did not appear f ollowing publication of the summons

, the court

entered a default judgment against her for approximately $1.9 million.

( Ibid .) In 2014, Calvert attempted to enforce the default judgment against

Albinali in Canada, where she resided at the time

. ( Ibid .) Albinali

discovered the judgment in 2015 and moved to have it vacated or set aside,

alleging the service by publication was improper. ( Id

. at pp. 959

– 960.) The

trial court denied the motion and Albinali appealed. ( Id

. at p. 960.) The

Court of Appeal determined Calvert’s summons had been published in the

wrong newspaper, invalidating the service on Albinali. ( Id

. at pp. 961

– 962.)

As a result, the default judgment entered against Albinali was deemed void

and the case was reversed and remanded to the trial court to vacate the

judgment. ( Id

. at p. 965.) Following the appeal

, the parties stipulate d to

1 We note in this previous action that appellant used the surname “Al

Binali” rather than “Albinali.” In the instant action, appellant filed suit

under the name “Albinali,” and was referred to as “Albinali” for the duration

of the proceedings in the trial court. On appeal, both sides use the spelling

“Albinali

, ” and we do the same here for consistency.

2 As no issues in this appeal turn on the legal distinction between this

corporate entity and Calvert as an individual, we will refer to both

collectively as “Calvert” for clarity and simplicity

.4

dismiss the enforcement proceedings Calvert had initiated in Canada

. As

part of this dismissal, the Canadian court issued a judgment against Calvert

,

awarding Albinali her attorneys fees and costs of approximately $75,000

.

Albinali then filed the instant action in California state court on March

2, 2021, seeking to domesticate and enforce the Canadian judgment against

Calvert

. In April 2021, Calvert answered Albinali’s complaint

.

B. Written Discovery

Upon answering the complaint, Calvert propounded written discovery

on Albinali

. Albinali objected to Calvert’s discovery, arguing it was targeted

at the merits of Calvert’s prior defamation action against her, which was

irrelevant to her collection action

. Following an informal discovery

conference (IDC) with the court , Calvert filed a motion to compel responses to

some of the discovery propounded on Albinali

. On September 30, 2021, the

court den ied Calvert’s motion

. The trial court determined Calvert was not

entitled to conduct discovery concerning the defamation claim because he was

not entitl ed to an offset for that claim under Code of Civil Procedure section

431.70. 3

The parties scheduled a further IDC for December 15, 2021

, again

concerning Albinali’s responses to written discovery

. Calvert alleged Albinali

had failed to serve substanti ve, supplemental responses to certain discovery

in violation of the court’s instructions at the September 30 hearing

.

Following the IDC, the court issued a minute order directing Albinali to

provide discovery responses by February 1, 2022

. It is undisput ed that

Albinali ultimately provided discovery responses on May 19, 2022

.

3 All further statutory references are to the Code of Civil Procedure

unless otherwise specified.5

C. Albinali’s Deposition

On July 20, 2022, Calvert took Albinali’s deposition

. Calvert’s

deposition notice provided the deposition would be conducted remotely “via

Veritext Zoom video conferencing software using Veritext’s Exhibit Share

system for exhibits.” Due to technical difficulties, the deposition was

terminated before it could be completed, and counsel for the parties agreed to

complete the deposition on another date

. Sho rtly after the deposition,

Albinali’s counsel substituted out of the case, and she began representing

herself in pro pria per sona (pro. per.)

. Calvert’s counsel made efforts to

contact Albinali to schedule her continued deposition to no avail

. On

Septembe r 1, 2022, Calvert filed a motion to compel Albinali to appear for her

continued deposition

. Calvert also requested mone tary sanctions of $3,000

.

Two days before the hearing, new counsel substituted into the action for

Albinali

. The next day, Albinali filed an ex parte application to continue the

hearing on Calvert’s motion to allow counsel to become familiar with the case

and file a substantive opposition

. The court granted Albinali’s request and

continu ed the hearing to November 7, 2022

. On November 7, 2022, the trial

court granted Calvert’s motion in part

. The court ordered Albinali to appear

for a further deposition “to be scheduled within 20 days, or by agreement of

the parties.” The court denied Calvert’s request for monetary sanctions

,

finding that Calvert’s counsel had “fail[ed] to provide a billing rate or an

accounting of hours” supporting the request

.

Albinali’s deposition did not occur within 20 days of the court’s

November 7 order, and the parties were unable to agree on an al ternate date.

On November 28, 2022, Albinali’s counsel offered to proceed with the

deposition on December 2

. However, counsel also stated that Albinali did not

have access to a laptop that she could use for the deposition

. Calvert’s6

attorney rejected th at offer, stating that he could not take Albinali’s remote

deposition if she did not have a laptop to view exhibits

. On December 12,

Albinali’s counsel telephoned Calvert’s counsel to offer Albinali for deposition

that same day, December 12

. Albinali’s c ounsel again represented that

Albinali did not have a laptop to use for the deposition, and accordingly

,

Calvert’s counsel rejected that offer as well

.

On December 12, 2022, Calvert filed an ex parte application seeking

terminating or, alternatively, mo netary sanctions against Albinali for her

failure to appear for her deposition by the deadline previously set by the

court

. Calvert sought terminating sanctions or, alternatively, $7,000 in

monetary sanctions pursuant to s ection s 2025.450 and 2023.030

. O n

December 14, 2022, Albinali filed an opposition to the ex parte application,

stating counsel was actively trying to arrange for Albinali’s continued

deposition and asking that she not be sanctioned.

On December 15, 2022, the trial court grant ed Calver t’s ex parte

application in part

. It found Albinali had not appeared for her deposition as

previously ordered by the court

. The court ordered Albinali to appear for and

complete her deposition by December 23, 2022

. It also imposed $7,000 in

monetary sanctions against Albinali , which was to be paid to Calvert within

ten days

. While the court denied the request for terminating sanctions, it

cautioned Albinali that it would “consider terminating sanctions and/or

dismissal of the case” if she did not appear for her continued deposition.

Shortly after the hearing, Albinali’s counsel substituted out of the

action, and she resumed representing herself in pro

. per.7

D. Terminating Sanctions

On December 28, 2022, Calvert filed his final pretrial conference

statement

. In his statement, Calvert informed the court that Albinali had

failed to respond to attempts to schedule her continued deposition and as a

result the deposition had not been completed as directed by the court’s

December 15 order

. Calvert also noted that Albinali had not responded to

attempts to contact her to prepare the joint filings that were required to be

submitted for the final status conference

. Albinali did not appear for the

final status conference on January 6, 2023

. At the conference, t he trial court

noted Albinali had not appear ed for her continued deposition

. On its own

motion, the court also vacated the trial date and set an order to show cau se

for failure to appear at the final status conference

.

On January 24, 2023, Calvert filed a motion for terminating and

monetary sanctions against Albinali

. Calvert argued Albinali had repeatedly

violated court orders requiring her to complete her deposition

. He also noted

that Albinali had refused to pay the monetary sanctions imposed by the

court

. Calvert detailed the history of Albinali’s delay in providing responses

to written discovery

. He also set out other instances of alleged misconduct by

Albinali, including her failure to appear f or two court conference s and failure

to participate in the preparation of a joint status report

. Calvert alleged

Albinali’s “unjustified obstruction, outright failure to respond to mandatory

requests and orders, and refusal to litigate her case all consti tute bad faith

actions or tactics that are frivolous or solely intended by Plaintiff to cause

unnecessary expense and delay, and did cause significant expense and delay

. ”

Calvert argued Albinali’s conduct warranted terminating sanctions

.

Alternatively, he asked the court to impose monetary sanctions of

approximately $56,000.8

T he day before the hearing on Calvert’s motion

, Albinali filed a

declaration stating she had been unaware that a hearing was scheduled for

January 6 , 2023

. She als o claimed Calvert did not serve her with the motion

to dismiss

. S he argued she had recently retained new counsel and was

willing to have the rest of her deposition taken between March 14 and

March 21

. Albinali also asserted that Calvert’s counsel had asked improper

questions about her assets and religion during the first session of her

deposition

. She asked the court to continue the hearing on Calvert’s motion

so her new counsel could file a written opposition

. Her declaration made no

reference to th e $7,000 in unpaid monetary sanctions, but she claimed that

she would “never willfully disobey any Court Order.” T he court continued the

hearing to March 10, 2023, and allowed Albinali to submit a written

opposition by March 2.

In her opposition, Albinali argued terminating sanctions were

unwarranted because she had provided dates to complete her deposition

.

Albinali also accused Calvert of discovery abuses, specifically arguing that

Calvert had asked “irrelevant, improper and harassing questions to Albinali”

during the first session of her deposition

. Albinali also argued that she “did

not willfully disobey” the court’s November 7, 2022, order compelling her to

appear for her continued deposition because her attorney offered December 2

to complete her deposition

. She also claimed that her “ delay in completing

her deposition by December 23, 2022 was due to a string of catastrophic life

events starting with a car accident on July 4, 2022; her aunt’s death on

October 15, 2022; caring for her mother when she was admitted into the

hospital on November 28, 2022 who later passed away on January 3, 2023;

and her brother’s death on December 13, 2022. ” Albinali acknowledged she

had not paid the monetary sanctions imp osed against her but argued that9

under Midwife v. Bernal (1988) 203 Cal.App.3d 57

, it would be improper to

dismiss her case solely for her failure to pay the sanctions

. Albinali offered

no explanation for her failure to comply with the court’s order to pay the

sanctions. Albinali’s opposition concluded with a request for an award of

approximately $19,000 in monetary sanctions against Calvert.

On March 6, 2023, Calvert filed a reply in support of its motion

. In his

reply, Calvert disputed Albinali’s claims that she was not served with

Calvert’s motion to dismiss

. Calvert noted Albinali had been served by

overnight delivery at the address listed on her court filings and was

additionally served by email at an email address confirmed by her p rior

counsel

. Calvert also argued that Albinali was never asked about her

religion or assets during the first session of her deposition, and her

mis representations were contradicted by the deposition transcript.

At the March 10, 2023, continued hearing on Calvert’s motion to

dismiss, the court held that the life events described in Albinali’s opposition,

coupled with her willingness to be deposed between March 14 and 21

,

indicated that her “failure to appear [for deposition] was not willful.” The

trial court also noted “there is a strong public policy preference in favor of

deciding matters on the merits” and decided to give Albinali a “final attempt

to hold her deposition.” The court directed Albinali to pay the $7,000 in

monetary sanctions by March 30

. The court continued the hearing to March

30, “to confirm [Albinali]’s deposition has been completed and the sanctions

paid.” The trial court cautioned Albinali that if she did not appear for her

deposition and pay the sanctions ord ered by the court, the court would grant

Calvert’s motion to dismiss her case.

On March 23, 2023, Calvert’s counsel filed a supplemental declaration

stating that Albinali had completed her deposition on March 20

. Counsel10

also noted that Albinali had not paid the monetary sanctions previously

ordered by the court

.

A t the continued hearing on March 30, 2023

, Calvert informed the

court that Albinali had not paid the $7,000 in monetary sanctions

. The

court’s minute order memorializing the hearing states that “[Albinali]’s

counsel represents that [Albinali] understands the Court’s order regarding

the $7,000 .00 in sanctions. However, there is no indication that the plaintiff

is willing to pay the sanctions award.” The court imposed additional

monetary sanctions of $22,900 against Albinali in connection with Calvert’s

motion to dismiss

, to be paid within 30 days

. The court then continued the

hearing to May 5, 2023, “for [Albinali] to pay the sanctions as ordered.” The

court also invited Calvert to “submit a proposed judgment regarding the

sanctions awarded.”

On April 25, 2023, Albinali’s counsel substituted out of the case

, and

Albinali again represented herself in pro

. per

.

Albinali did not appear at the continued hearing on May 5, 2023

. In

her absence, the court issued a minute order not ing the monetary sanctions

remained unpaid

. The minute order also reflects the court granted Calvert’s

motion to dismiss and entered a judgment dismissing Albinali’s case without

further explanation

. The judgment provides in pertinent part that “Based

upon the continued willful disobedience of the Court’s Orders by [Albinali]

,

this case is dismissed with prejudice.” The judgment also directs Albinali to

pay the monetary sanctions previously ordered by the court totaling $29,900.

E. Appeal

On June 30, 2023, new counsel substituted into the action for Albinali

.

Albinali timely appealed the judgment entered agains t her

. On appeal,11

Albinali argues the trial court abused its discretion in dismissing her case

.

She also argues the orders imposing monetary sanctions against her are

void. 4

DISCUSSION

A. Terminating Sanctions

1. Legal Standard

“ California discovery law authorizes a range of penalties for a party ’ s

refusal to obey a discovery order, including monetary sanctions, evidentiary

sanctions, issue sanctions, and terminating sanctions. ” ( Lopez v. Watchtower

Bible & Tract Society of New York, Inc. ( 2016) 246 Cal.App.4th 566, 604

( Lopez ) .) A court has broad discretion in selecting the appropriate penalty to

redress a party’s failure to comply with a discovery order. ( Ibid .)

“ 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. ’ [Citation.] Generally, ‘ [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 sa nctions would not

produce compliance with the discovery rules, the trial court is justified in

imposing the ultimate sanction. ’ [Citation.] Under this standard, trial courts

4 On appeal, Calvert filed a motion requesting that we take judicial

notice of a new malicious prosecution action Albinali has initiated against

Calvert in California state court

. Th is action has no relevance to the

dispositive issues on appeal, and Calvert’s request for judicial notice is

denied. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4

[denying request for judicial notice based on plaintiffs’ failure to demonstrate

relevance].)12

have properly imposed terminating sanctions when parties have willfully

disobeye d one or more discovery orders. ” ( Los Defensores, Inc. v. Gomez

(2014) 223 Cal.App.4th 377, 390 ( Los Defensores ) ; see also Creed

- 21 v. City of

Wildomar (2017) 18 Cal.App.5th 690, 702.)

For this reason, the discovery statutes “evince an incremental appr oach

to discovery sanctions, starting with monetary sanctions and ending with the

ultimate sanction of termination.” ( Doppes v. Bentley Motors, Inc. (2009) 174

Cal.App.4th 967, 992.) “Although in extreme cases a court has the authority

to order a termina ting sanction as a first measure [citations], a terminating

sanction should generally not be imposed until the court has attempted less

severe alternatives and found them to be unsuccessful and/or the record

clearly shows lesser sanctions would be ineffect ive [citations].” ( Lopez

, supra

,

246 Cal.App.4th at pp. 604

– 605.) “[T] he sanctioned party ’ s history as a

repeat offender is not only relevant, but also significant, in deciding whether

to impose terminating sanctions .” ( Liberty Mutual Fire Ins. Co. v. L cL

Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106; Deyo v. Kilbourne

(1978) 84 Cal.App.3d 771, 796 [ “ the court must examine the entire record in

determining whether the ultimate sanction should be imposed ” ].)

Court s also possess the inherent power to impose terminating sanctions

for litigation misconduct beyond the context of discovery. Court s may dismiss

cases for unreasonable delay in prosecution or for other deliberate and

egregious misconduct. ( Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155

Cal.App.4th 736, 758 , 761 .) This “inherent power may only be exercised to

the extent not inconsistent with the federal or state Constitutions, or

California statutory law. ” ( Id . at p. 762.)

The trial court has broad discretion in selecting th e appropriate

sanction

, and we must uphold the court ’ s determination absent an abuse of13

discretion. ( Los Defensores

, supra

, 223 Cal.App.4th at p. 390.) We “‘ view the

entire record in the light most favorable to the court ’ s ruling, and draw all

reasonable inferences in support of it. ’” ( Osborne v. Todd Farm Service

(2016) 247 Cal.App.4th 43, 51.) “ We accept the trial court ’ s factual

determinations concerning misconduct if they are supported by substantial

evidence. ” ( Ibid .) “ The appellant bears the burden on appeal of

demonstrating that the trial court abused its discretion in imposing a

discovery sanction. ” ( Rutledge v. Hewlett

- Packard Co. (2015) 238 Cal.App.4th

1164, 1191.)

2. Albinali Has Failed to Establish the Trial Court Erred in

Imposing Terminating Sanctions

Albinali’s primary contention on appea l is that her discovery conduct

did not warrant the dismissal of her case as a discovery sanction

. Albinali

argues that the court erred in imposing terminati ng sanctions against her

solely because she failed to pay monetary sanctions despite numerous court

orders directing her to do so.

Albinali has failed to present a record adequate for appellate review.

“It is well settled, of course, that a party chall enging a judgment has the

burden of showing reversible error by an adequate record. [Citations.]”

( Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “Where no reporter’s transcript

has been provided and no error is apparent on the face of the existing

appell ate record, the judgment must be conclusively presumed correct as to

all evidentiary matters . To put it another way, it is presumed that the

unreported trial testimony would demonstrate the absence of error.

[Citation.]” ( Estate of Fain (1999) 75 Cal.Ap p.4th 973, 992 ; Rossiter v. Benoit14

(1979) 88 Cal.App.3d 706, 712 ; Foust v. San Jose Construction Co., Inc. (2011)

198 Cal.App.4th 181, 186

– 187.)

The record on appeal is insufficient to establish the trial court abused

its discretion in dismissing Albinali’s case. The record contains no reporter’s

transcript for any of the hearings concerning Albinali’s responses to written

discovery, Albinali’s depo si tion, or Calvert ’s motion for terminating sanctions.

The record is also devoid of a suitable substitute for those transcripts, such as

a settled or agreed statement. In the absence of a reporter’s transcript or

suitable substitute, we are left only with the court’s minu te orders and

judgment of dismissal. The orders do not set forth the court’s rationale or

reasoning in dismissing Albinali’s case. In other words, these orders do not

conclusively establish that Albinali’s case was dismissed for the reasons

posited by Al binali

.

Similarly, the judgment signed by the court indicates the dismissal was

based on Albinali’s continued willful violation of unspecified court orders. As

detailed above, Albinali had a history of violating court orders beyond her

failure to pay mon etary sanctions . Calvert’s motion for terminating sanctions

also set out an extensive list of Albinali’s delay and obstruction in t he

litigation, including failures to appear at conferences and hearings or

participate in joint filings ordered by the trial court . The record also

illustrates a pattern of Albinali waiting until the eve of a hearing to procure

counsel and then requesting continuances on the basis that newly hired

counsel needed time to review the case and file briefing on Albinali’s behalf.

Additionally, Albinali made representations in court filings regarding

Calvert’s alleged deposition misconduct

, which apparently had no basis in

fact. Taken together, the trial court could have determined this conduct to be

so obstructive and willful as t o warrant the dismissal of Albinali’s case15

pursuant to the court’s inherent power to dismiss an action for litigation

misconduct beyond discovery.

The limited record we have before us illustrates that Albinali had a

long history of delay, obstruction, mis representations, and noncompliance

with court orders. The record also indicates the trial court made every effort

to avoid dismissal of Albinali’s case. The court granted each of Albinali’s

requests for continuances to accommodate newly

- retained counsel. As

required, the trial court approached the issue of sanctions incrementally,

beginning with informal conferences, then progressing to orders to show

cause, monetary sanctions, and repeated warnings of terminating sanctions

before ultimately dismissing A lbinali’s case. The trial court also gave

Albinali the benefit of the doubt in finding her failure to complete her

deposition was not willful misconduct but the by

- product of a series of

unfortunate life experiences.

The record also establishes Calvert w as prejudiced by these actions,

both in the form of attorneys fees and costs incurred to bring various motions

to compel, but also in significant delays in the litigation. Nearly a year

elapsed between when Albinali’s initial responses to Calvert’s writte n

discovery were due and when she ultimately provided complete responses.

Similarly, it took eight months for Albinali to appear for her continued

deposition, despite all parties being in agreement that a continued deposition

was necessary. We also note t rial in this action was originally set for

January 17, 2023, but that it had to be vacated when Albinali failed to appear

at the final status conference or participate in the preparation of joint filings

required for that conference. In short, there is a mple evidence in the record

that Albinali’s conduct resulted in significant delays in the proceedings.16

In examining the totality of the circumstances in which the court

dismissed Albinali’s case, t he record before us suggests the trial court did not

abuse its discretion. However, we need not decide this question and decline

to do so. On appeal, Albinali only alleges that dismissal was improper as a

discovery sanction. As discussed above, the record does not establish that the

discovery violation was the only basis for the trial court’s ruling

. Based on

the limited record, we affirm the trial court’s dismissal of Albinali’s case.

B. The Initial Award of Monetary Sanctions was Improper

Albinali contends the court’s December 15 , 2022, order granting

Calvert’s ex parte request for monetary sanctions is void because such

sanctions cannot be awarded on an ex parte basis

. We agree.

Calvert’s ex parte application sought sanctions pursuant to sections

2025.450 and 2023.030

. Under s ection 2025.450, subdivision (h), if a party

fails to obey an order compelling attendance at a deposition, the court may

impose sanctions under Chapter 7 ( § 2023.010 et seq). In imposing sanctions

under Chapter 7, a court must follow the procedure set for th in section

2023.030. As a prerequisite to imposing sanctions under section 2023.030,

the court must first provide “notice to any affected party, person, or

attorney,” as well as an “opportunity for hearing.” (§ 2023.030.) This notice

provision requir es written notice served in accordance with the timeframes

set out in section 1005 , subdivision (b)

. ( Alliance Bank v. Murray (1984) 161

Cal.App.3d 1, 5

– 6.) Accordingly, “ Discovery sanctions may not be ordered ex

parte, and an order purporting to do so i s void. ” ( Sole Energy Co. v. Hodges

(2005) 128 Cal.App.4th 199, 208 ; accord Parker v. Wolters Kluwer United

States, Inc. (2007) 149 Cal.App.4th 285, 296 ( Parker ) [“ Discovery sanctions,17

however, cannot be awarded ex parte.

. . . A sanction order issued ex parte is

void ”] .)

The December 15 award of $7,000 in monetary sanctions against

Albinali is void. Calvert does not address this argument in his brief and has

therefore conceded the issue. ( People v. Bouzas (1991) 53 Cal.3d 467, 480

[argument is conceded by failure to address it on appeal] ; Westside Center

Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [ a party

“ effectively concedes ” an issue by failing to address it in brief ing ].)

Albinali also contends the March 30, 2023, order imposing an

additional $22,900 in monetary sanctions is void because it was based on her

failure to pay the original $7,000 as required by the December 15, 2022,

order

. We disagree. The March 30 sanctions award was issued in connection

with C alvert’s regularly noticed motion to dismiss, not on an ex parte basis.

That motion sought monetary sanctions based on Albinali’s failure to appear

for deposition by December 23, 2022, as required by the court’s December 15

order. While the award of mone tary sanctions in the December 15 order is

void, there is no similar rule that prohibits a court from issuing an order

compelling attendance at a deposition on an ex parte basis. ( Parker

, supra

,

149 Cal.App.4th at pp. 295

– 296 [holding that an ex parte ord er compelling

attendance at deposition was valid but reversing award of monetary damages

contained in the same order as void]

. ) The court was thus within its power to

issue the December 15 order directing Albinali to appear for deposition by

December 23, 2022.

When Albinali failed to appear for deposition by that date, the court

was permitted to impose monetary sanctions for her failure to appear in

connection with Calvert’s noticed motion requesting such sanctions.

(§ § 2023.010, subd s . (d), (g); 2023.03 0, subd. (a).) The court’s March 30 order18

does not indicate the basis for the award of additional monetary sanctions.

We are unable to determine whether sanctions were imposed because

Albinali failed to pay the previously imposed sanctions or because she failed

to appear for deposition. Albinali did not submit a reporter’s transcript of the

March 30 hearing or an acceptable substitute, such as a settled statement.

The record before us is thus inadequate to establish the $22,900 monetary

sanction was iss ued because Albinali failed to pay the $7,000 sanction. Based

on this insufficient record, we must reject Albinali’s argument that the trial

court’s March 30, 2023, award of monetary sanctions is void.

DISPOSITION

The award of $7,000 in monetary sanction s against Albinali is reversed.

In all other respects, the judgment of dismissal and award of $22,900 in

monetary sanctions are affirmed

. Calvert is awarded his costs on appeal

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN , J.

WE CONCUR:

C OLLINS

, Acting P. J.

MORI , J.