Adesokan v. Adesokan
Filed 7/3/07 Adesokan v. Adesokan CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
STELLA NNAMANI ADESOKAN, Plaintiff and Respondent, v. ADEGBEMIGA ADESOKAN et al., Defendants and Appellants. | F047678 (Super. Ct. No. MFL003252) OPINION |
APPEAL from a judgment of the Superior Court of Madera County. Thomas L. Bender, Judge.
Cynthia J. Secula, in pro. per., for Appellant.
California Rural Legal Assistance, Baldwin S. Moy and Leroy V. Gee, for Plaintiff and Respondent.
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When defendant and his attorney of record, Cynthia Secula (hereafter appellant), failed to appear for defendants duly noticed deposition, a motion to compel attendance at deposition and for monetary sanctions was filed by plaintiff. The court granted the motion, and imposed monetary sanctions against appellant in the sum of $1,548 for misuse of the discovery process. Appellant now appeals from the sanctions order on the grounds that the trial court impermissibly imposed sanctions against her without adequate notice and abused its discretion. We will affirm.
BACKGROUND FACTS
The underlying litigation in this case involved mutual petitions for restraining orders following the break-up of a cohabiting relationship between plaintiff/petitioner, Stella Adesokan (plaintiff), and defendant/respondent, Adegbemiga Adesokan (defendant). A criminal case was also pending which purportedly charged defendant with committing domestic violence and battery against plaintiff.[1] Appellant represented defendant solely in connection with the civil proceedings.
Plaintiffs counsel, Baldwin Moy, sought to depose defendant in connection with the petition for restraining order. On February 4, 2005, after an attempt to schedule an earlier deposition failed, an amended notice of deposition was served on defendant, setting defendants deposition for February 16, 2005. According to the proof of service, the amended notice of deposition was served by means of overnight Express Mail sent on February 4, 2005, from Madera, California, by placing the envelope in the U.S. mail, Express Mail postage prepaid, and addressed to appellant (defendants attorney) whose mailing address was a post office box in Fresno, California.
On February 6, 2005, appellant wrote to Mr. Moy arguing that any deposition of defendant was premature because the parties marital status had not yet been determined by the court. Mr. Moy responded by asking if there was any supporting legal authority for appellants position. He said that in the absence of such legal authority or a protective order, the deposition would go forward.
On February 14, 2005, appellant sent another letter[2]to Mr. Moy which announced as follows: Please be advised that on or about February 8, 2005, [defendant] obtained new counsel, and I no longer represent [defendant] in this matter. (Unnecessary capitalization omitted.) Remarkably, the letter did not disclose the identity of the new attorney. Appellants letter then warned that no attempt should be made to contact [defendant] directly since he is represented by the undisclosed attorney, and it advised further that I and or [defendant] [sic] will not be attending the deposition your office has scheduled for this Wednesday, February 16, 2005. (Unnecessary capitalization omitted.)
On February 15, 2005, Mr. Moy responded that the deposition would proceed as scheduled. He reiterated that the notice of deposition was properly served, and asserted that until procedural requirements were followed for changing attorneys, appellant remained defendants attorney of record. Further, Mr. Moy noted that even if new counsel substituted into the case, defendant would still have to appear at his duly noticed deposition. Later that same day, Mr. Moys office received a call from attorney Peter Kapetan, who reported that although he had been contacted by appellant about possibly taking the case, he was declining the request.
On February 15, 2005, appellant served on behalf of defendant an Objection to Notice of Taking Deposition. The document asserted that the notice of deposition was not timely served pursuant to the provisions of California Code of Civil Procedure Section 2025(b)-(f) Mr. Moy promptly responded that the objection was untimely and the ground raised for objection (i.e., inadequate notice) was without merit. He reaffirmed that the deposition would proceed as scheduled.
On February 16, 2005, neither appellant nor defendant appeared at the noticed deposition.
On February 17, 2005, plaintiff filed an ex parte application for an order shortening time for serving a notice of motion to compel defendants deposition and for sanctions. Mr. Moy and appellant both appeared and argued the ex parte application on February 18, 2005. The court granted the application and issued an order shortening time. The hearing of the motion to compel was set for February 24, 2005.
Plaintiffs motion to compel deposition attendance and for sanctions was served on defendant pursuant to the courts order shortening time, and was filed on February 22, 2005. The notice of motion specified that the motion was made on the ground there was no substantial justification for Defendants refusal to attend his deposition and to produce demanded documents. It also expressly stated that monetary sanctions were being sought against defendant and/or Defendants attorney, Cynthia Secula.
On February 23, 2005, defendants opposition to the motion was filed, which included a motion for a protective order. In the opposition, appellant argued (on defendants behalf) that the deposition should not be compelled because there was a criminal matter currently pending against defendant, arising out of the same facts as the case at hand, and therefore the Fifth Amendment privilege against self-incrimination applied. This appears to have been the first time that the issue of Fifth Amendment privilege was raised. Regarding the notice objections to the deposition, the opposition asserted that notice was inadequate because appellant did not actually receive the amended notice of deposition until February 12, 2005.
The hearing of the motion to compel was held on February 24, 2005, before Judge Thomas L. Bender. Mr. Moy appeared on behalf of plaintiff; and appellant appeared on behalf of defendant.[3] At oral argument, attorney Moy stated that the deposition related solely to defendants failure to comply with the courts restraining orders, especially his conduct with respect to the location of a particular automobile, all of which occurred approximately two months after the alleged criminal incident. Thus, it was argued that the matters for which defendants deposition was sought had nothing to do with the criminal charges. As to service of the amended deposition notice, Mr. Moy pointed out that the proof of service clearly showed it was mailed by Express Mail on February 4, 2005, 12 days prior to the date of the deposition, which is sufficient notice under the applicable statutes.
Appellant argued the deposition should not be compelled due to Fifth Amendment privilege and because the amended notice of deposition was untimely served.
Upon hearing from counsel regarding the merits of the motion, the court then solicited argument on the issue of sanctions. The main questions were whether appellant improperly prevented the deposition from going forward and (also) foreclosed all meet and confer efforts when, after receiving the notice of deposition, she told opposing counsel, in effect, [d]ont call me and [d]ont contact my client, and at the same time failed or refused to identify the purported new attorney for defendant. Mr. Moys position was that this conduct was improper and was an abuse of the discovery process. Further, he argued that if there was a viable defense to the deposition, she need[ed] to communicate that; that wasnt done. Appellants only explanation for her conduct was that she thought Mr. Kapetan would be taking the case.
In ruling on the motion, the court first concluded that the deposition was adequately noticed in accordance with statute. As to defendants claim of privilege, the court explained that it appeared the privilege was largely (if not wholly) inapplicable to the subject matter for which the deposition was sought, and in any event, the claim of privilege clearly did not justify defendants failure to appear at the deposition because such objection could be made at the deposition on a question-by-question basis. Defendants motion for protective order was accordingly denied. The court then granted plaintiffs motion to compel deposition attendance and ordered appellant to pay monetary sanctions in the sum of $1,548. The courts written order granting the motion to compel and imposing sanctions against appellant was filed on March 18, 2005. Notice of appeal timely followed.[4]
CONTENTIONS ON APPEAL
Appellant appeals from the order imposing monetary sanctions against her on the following grounds: (1) the notice of deposition was not timely served, (2) the sanctions order was granted without adequate notice or due process, and (3) the trial court abused its discretion because appellant had substantial justification for opposing the deposition and plaintiff failed to meet and confer. We will address each of these contentions in turn.
DISCUSSION
I. Standard of Review
We review a trial courts imposition of sanctions for abuse ofdiscretion. (Sauer v. Superior Court (Oak Industries, Inc.)(1987) 195 Cal.App.3d 213, 228.) [T]he trial court has wide discretion to order discovery and broad powers to enforce those orders. Although such powers are not unlimited, they are presumed correct and will not be disturbed in the absence of an abuse of discretion. (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175.) The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. (Do ItUrself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) The question is not whether the trial court should have imposed a lesser sanction, but whether the trial court abused its discretion by imposing the sanction it chose. (Id. at p. 37.)
In connection with our review for abuse of discretion, we employ the equivalent of the substantial evidence test by accepting the trial courts resolution of credibility and conflicting substantial evidence, and its choice of possible reasonable inferences. (In re Executive Life Ins. Co. (1995) 32 Cal.App.4th 344, 358.) On the other hand, in questions relating to statutory construction of notice provisions of applicable statutes, we will apply a de novo review. (See People ex rel. Lockyer v. Shamrock Foods Company (2000) 24 Cal.4th 415, 432.)
II. Notice of Deposition Was Sufficient
A preliminary issue in this case is whether defendant received sufficient notice of deposition under the applicable statutes. Code of Civil Procedure section 2025, subdivision (f)[5]provides: An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice. The provisions of section 1013 are applicable to extend the time period when notice is served by means other than personal delivery, such as service by mail or Express Mail. ( 2019, subd. (e).) Thus, where the notice is sent by Express Mail, section 1013 subdivision (c) specifies that [t]he service is complete at the time of deposit, but any period of notice shall be extended by two court days. Here, the amended notice of deposition was served by Express Mail on February 4, 2005, and provided for a deposition date of February 16, 2005. Since the deposition hearing was on the 12th day after the amended notice of deposition was deposited for Express Mail delivery, and the 12th day was indeed two court days after the initial 10-day period, the notice was sufficient under the applicable statutes.
Appellant makes the novel argument that notice of deposition was nonetheless inadequate because any written objection asserting defective notice had to be served at least three calendar days prior to deposition hearing (see 2025, subd. (g)), which in this case fell on a Sunday. We find appellants argument to be baseless. The process set forth in section 2025, subdivision (g), for making prompt objections based on claimed notice defects, does not impact the amount of pre-deposition notice which must be provided to the deponent. They are two distinct matters. In other words, if the amount of pre-deposition notice complies with section 2025, subdivision (f) and section 1013, it is sufficient to provide adequate notice of deposition, and this conclusion is unaffected by what day of the week the deadline for written objections may happen to fall.[6]
We note that in the present case, appellants written objection to deposition was not sent until February 15, 2005, the day before the deposition. Clearly, the written objection was untimely and the alleged objections based on purported notice defects were waived as specified in section 2025, subdivision (g)
III. Appellant Was Not Denied Due Process
Next, appellant contends that she was denied due process because the court ordered sanctions against her on an exparte basis without notice of hearing. Although we fully agree with the proposition that sanctions may not be granted ex parte (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 5-6; Sole Energy Company v. Hodges (2005) 128 Cal.App.4th 199, 207) and that both notice and an opportunity for a hearing are required ( 2023, subd. (b)), appellant has mischaracterized the proceedings in this case. Monetary sanctions were not imposed ex parte. Rather, appellant was ordered to pay sanctions at a hearing after receiving notice of motion, but the time period for notice was shortened pursuant to an ex parte order.[7] (See 1005, subd. (b) [period for notice of hearing may be shortened by the court].) We also stress that section 2023, subdivision (b), does not specify that any particular period of notice is mandated, and appellant has failed to make a reasonable argument that the amount of notice provided in this case was inadequate under the circumstances.
Moreover, appellants appearance at the hearing of the motion to compel, in which she argued the merits thereof, waived any objection based on inadequate notice of hearing. (Alliance Bank v. Murray, supra, 161 Cal.App.3d at p. 7.) As the court stated in Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930: It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. In this case, appellant was served with a notice of motion which clearly specified that monetary sanctions were being sought against her, she appeared at the hearing, argued the merits, and failed to object at the hearing on grounds of defective pre-hearing notice or due process. We find that such issues have been waived.
Appellant also claims that she did not receive adequate notification of the ex parte proceeding which led to the order shortening time. We disagree. Under the California Rules of Court, rule 379,[8]a party making an ex parte application must give the opposing party notification thereof by 10:00 a.m. on the court day prior to the ex parte appearance. The record reflects that notification of the ex parte hearing was made to appellant by telephone and facsimile on February 16, 2005, and that appellant appeared at the ex parte hearing and argued the merits of the application. Not only has appellant failed to demonstrate that she received inadequate notice of the ex parte hearing, but on this record we conclude that any such errors were waived by appellants appearance at the hearing. Finally, appellant had adequate opportunity to raise any issues or objections in opposition to the motion to compel after the order shortening time was granted.
We conclude appellants contentions that she was denied notice and an opportunity for hearing on the issue of monetary sanctions are without merit.
IV. No Abuse of Discretion
Appellant contends that the trial court abused its discretion in imposing monetary sanctions against her because (1) plaintiffs attorney failed to adequately meet and confer prior to filing the motion, and (2) appellant had substantial justification for resisting her clients deposition. We reject both contentions.
In support of her contentions, appellant cites section 2025, subdivision (o),[9]which provides that in a motion to compel under that subdivision, the moving party must submit a declaration showing a reasonable and good faith effort at an informal resolution of each issue presented by the motion. It is contended that plaintiff failed to make a reasonable attempt to resolve the discovery dispute. The record indicates otherwise. After the amended notice of deposition was served, appellant sent a letter asserting any deposition was premature until the parties marital status was judicially determined. Mr. Moy promptly responded to that contention. Thereafter, on February 14, 2005, appellant announced that defendant had obtained a new (unidentified) attorney, that plaintiffs counsel must not contact defendant, and that neither she nor defendant would be appearing at the deposition. Mr. Moy promptly responded to appellants communication as well as to the untimely written objections to deposition, and in each case Mr. Moy attempted to articulate why appellants position was unreasonable. Other communications were also exchanged. Contrary to appellants argument, the record is sufficient to allow the conclusion that Mr. Moy, as plaintiffs counsel, made reasonable efforts to informally resolve the discovery dispute prior to filing the motion.
Finally, appellant argues she acted with substantial justification and therefore monetary sanctions were inappropriate. When a monetary sanction is authorized by a provision of the Civil Discovery Act, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (See 2023, subd. (b)(1).) Appellant apparently contends that her conduct of preventing the deposition was justified because of her clients privilege against self-incrimination. We disagree. The trial court was correct that defendant could not in this case entirely refuse to attend the deposition based on a blanket claim of privilege. Rather, the objection should have been raised, if at all, on a question-by-question basis. (See Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 308-310.) Additionally, plaintiff made a reasonable showing that the deposition concerned events unrelated to the incident for which criminal charges were pending.
Section 2023, subdivision (b) (1)[10]provided: The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both, pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. It appears the trial court was convinced that appellant engaged in a misuse of the discovery process and/or advised her client to do the same by preventing her clients appearance at a duly noticed deposition or advising such failure to appear ( 2023, subd. (a)(4) [failure to submit to authorized method of discovery is a misuse of discovery process]), and by effectively shutting down meaningful meet-and-confer efforts undertaken by opposing counsel when she represented that a new attorney had substituted into the case but failed to identify the name of the purported attorney. (See, e.g., 2023, subd. (a)(9) [failure to confer described as misuse of discovery process]; Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1123-1124 [attorney sanctioned for conduct amounting to misuse of discovery process].) We reject appellants contention that under the circumstances of this case the trial court was required to find that she acted with substantial justification. The record supports a contrary conclusion, and in any event, appellant has failed to demonstrate the courts holding was arbitrary or capricious.
DISPOSITION
The decision of the trial court is affirmed. Costs on appeal shall be awarded to plaintiff.
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Kane, J.
WE CONCUR:
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Gomes, Acting P.J.
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Hill, J.
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[1] Although both parties have referred to the criminal case, we do not have a copy of the criminal information to confirm the nature of the charges.
[2] Although the letter was sent by mail and facsimile on February 14, 2005, it was dated February 12, 2005. The letter represents that appellant did not receive the amended notice of deposition until February 12, 2005.
[3] In addition, attorney Cindy Hopper appeared and indicated that she would be substituting in as new attorney for defendant after the motion to compel was argued by appellant.
[4] We initially dismissed the appeal for lack of an appealable order. After further consideration, we later recalled our remittitur and allowed the appeal to be filed because in the unique procedural history of this case, the sanctions order was made as an order after judgment and was thus appealable. (Code of Civ. Proc., 904.1.)
[5] Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure. For purposes of this appeal, we will refer to the sections of the Civil Discovery Act that were in effect at the time of the courts sanctions order in March of 2005. We note that recent legislation repealed and reenacted the statutes comprising the Civil Discovery Act, resulting in extensive renumbering of the affected statutes, effective July 1, 2005. (Stats. 2004, ch. 182, 22, 23, 61.) The changes were not intended to have any substantive effect on the law of civil discovery. (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1326 at fn. 7.)
[6] Otherwise, the advance notice necessary for a deposition would vary depending on what day of the week the objections deadline fell. We reject such an interpretation as unreasonable.
[7] The ex parte hearing, attended by appellant and Mr. Moy, was held on February 18, 2005. The court granted the order shortening time and pursuant thereto, the notice of motion to compel deposition attendance and for sanctions was served on appellant by facsimile and mail on February 18, 2005, with the hearing of the motion scheduled for February 24, 2005.
[8] Effective January 1, 2007, the rules of court were renumbered. Former rule 379 is now set forth in rules 3.1200-3.1207.
[9] Appellant apparently takes the position that the underlying motion to compel was made pursuant to section 2025, subdivision (o). Plaintiff/respondent has not indicated the particular subdivision of section 2025 under which the motion was made. Although we have addressed appellants assertions for purposes of this appeal since they presumably would have been raised under any provision of the Civil Discovery Act, we believe that the proper statutory basis for the motion to compel was former section 2025, subdivision (j)(3) (now 2025.450).
[10] Now section 2023.030, subdivision (a).
