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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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.

 B331322

 (Los Angeles County

 Super. Ct. No. 21SMCV00399)

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. Totino 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’ efforts to schedule plaintiff’s continued deposition were 

unsuccessful, despite court orders directing plaintiff to appear for 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 continuances to accommodate a revolving door of counsel who 

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

response, defendants brought a motion for terminating sanctions against 

plaintiff. The threat of terminating sanctions was 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 and 
3

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

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 following 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 stipulated 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 denied Calvert’s motion. The trial court determined Calvert was not 

entitled to conduct discovery concerning the defamation claim because he was 

not entitled 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 substantive, 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 undisputed 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. Shortly after the deposition, 

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

herself in propria persona (pro. per.). Calvert’s counsel made efforts to 

contact Albinali to schedule her continued deposition to no avail. On 

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

continued deposition. Calvert also requested monetary 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 

continued 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 alternate 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’s 
6

attorney rejected that 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 counsel 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, monetary 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 sections 2025.450 and 2023.030. On 

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 granted Calvert’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, the trial court

noted Albinali had not appeared for her continued deposition. On its own 

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

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 for two court conferences 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 constitute 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

The 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 also claimed Calvert did not serve her with the motion 

to dismiss. She 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 the $7,000 in unpaid monetary sanctions, but she claimed that

she would “never willfully disobey any Court Order.” The 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 imposed against her but argued that
9

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 prior 

counsel. Calvert also argued that Albinali was never asked about her 

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

misrepresentations 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 ordered 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. Counsel
10

also noted that Albinali had not paid the monetary sanctions previously

ordered by the court. 

At 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 noting 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 against 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 sanctions 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. This 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 

disobeyed 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 approach 

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 terminating 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 ineffective [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. LcL 

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”].)

Courts also possess the inherent power to impose terminating sanctions 

for litigation misconduct beyond the context of discovery. Courts 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 the appropriate

sanction, and we must uphold the court’s determination absent an abuse of
13

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 appeal 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 terminating 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 challenging 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 

appellate 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.App.4th 973, 992; Rossiter v. Benoit
14

(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 deposition, 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 minute 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 Albinali.

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 monetary sanctions. Calvert’s motion for terminating sanctions 

also set out an extensive list of Albinali’s delay and obstruction in the

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 to warrant the dismissal of Albinali’s case 
15

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, misrepresentations, 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 Albinali’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 was 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 written 

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 trial 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 ample 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, the 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 section 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 forth 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 requires 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 is 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 briefing].) 

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 Calvert’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 monetary 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 order 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, subds. (d), (g); 2023.030, subd. (a).) The court’s March 30 order 
18

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 issued 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 sanctions 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:

COLLINS, Acting P. J.

MORI, J.